Civil Procedure Code (CPC) 1908

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Civil Procedure Code (CPC) 1908

1. Short title, commencement and extent

(1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

1[(3) It extends to the whole of India except.-

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas.

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incedental or consequential modifications as may be specified in the notification.

Explanation.- In this clause, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.]

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.

1. Subs. by Act 104 of 1976, sec. 2, for sub-section (3) (w.e.f. 1-2-1977).

2. Definitions.

In this Act, unless there is anything repugnant in the subject or context,-

(1) “Code” includes rules;

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 [* * *] section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;

(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

3[(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

(6) “foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

4[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, 5[44A], 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir];

(8) “Judge” means the presiding officer of a Civil Court;

(9) “judgment” means the statement given by the judge on the grounds of a decree or order;

(10) “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

(12) “means profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made but the person in wrongful possession;

(13) “movable property” includes growing crops;

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

(16) “prescribed” means prescribed by rules :

(17) “public officer” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of 2[an All-India Service];

(c) every commissioned or gazetted officer in the military, 6[naval or air forces] of 7[the Union] 8[***] while serving under the Government.

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the court, and every person especially authorized by a Court of Justice to perform any of such duties:

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

9[***]

1. The words and figures “Section 47 or” omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977)..
2.Subs, by Act No. 104 of 1976 for “Indian Civil Service” (w.e.f. 1-2-1977).
3. Subs. by Act 2 of 1951, sec. 4, for clause (5) (w.e.f. 1-4-1951).
4. Ins. by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).
5. Ins. by Act 42 of 1953, sec. 4 and Sch. III (w.e.f. 23-12-1953).
6. Subs. by Act 35 of 1934, sec. 2 sch., for “or naval”.
7. Subs. by the A.O. 1950, for “His Majesty”.
8. The words “including His Majesty’s Indian Marine Service”, omitted by Act 35 of 1934, sec. 2.
9. Clause (21) ins. by the A.O. 1950 and omitted by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).

3. Subordination of Courts.

For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4. Savings.

(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5. Application of the Code to Revenue Courts

(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government 1[***] may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 2[***] may prescribe.

(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

1. The words “with the previous sanction of the G.G. in C”, omitted by Act 38 of 1920, sec. 2 and Sch. I.
2. The words “with sanction aforesaid” omitted by Act 38 of 1920, sec. 2 and Sch. I.

6. Pecuniary jurisdiction.

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts.

The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 1[or under the Berar Small Cause Courts Laws, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes 2[under the said Act or Law], 3[or to Courts in] 4[any part of India to which the said Act does not extend exercising a corresponding jurisdiction] that is to say,-

(a) so much of the body of the Code as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property ; and

(b) the following sections, that is to say,-

section 9, sections 91 and 92, sections 94 and 95 5[so far as they authorize or relate to-

(i) orders for the attachment of immovable property;

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of section 94],

and sections 96 to 112 and 115.

1. Ins. by Act 4 of 1941, sec. 2 and Sch. III.
2. Subs. by Act 4 of 1941, sec. 2 and Sch. III for “under that Act”.
3. Ins. by Act 2 of 1951, sec. 5 (w.e.f. 1-4-1951)
4. Subs. by the Adaptation of Laws (no. 2) Order, 1956, for “Part B States”.
5. Subs. by Act 1 of 1926, sec. 3, for “so far as they relate to injunctions and interlocutory orders”.

8. Presidency Small Cause Courts.

Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76 1[77,157 and 158], and by the Presidency Small Cause Courts Act, 1882, (15 of 1882) the provisions in the body of this Code shall not extend to any suit or proceedings in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay :
2[Provided that –

(1) the High Courts of Judicature at Fort William Madras and Bombay, as the case may be, may from time to time, by notifications in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, (15 of 1882) and with such modifications and adaptation as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court:
(2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall be deemed to have been validly made.]

STATE AMENDMENTS

Gujarat– In section 8, in the opening para, After the words “Calcutta, Madras and Bombay” insert the words “and in the City of Ahmedabad”.
[Vide Gujarat Act No. 32 of 1961, sec. 21 and Sch. (1-11-1961)].

1. Subs, by Act No. 104 of 1976 for “77 and 155 to 158” (w.e.f. 1-2-1977).
2. Added by Act 1 of 1914, sec. 2

9. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

1[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

2[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].

STATE AMENDMENTS

Maharashtra– After section 9 insert the following section 9A.

“9A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken such issue to be decided by the court as a preliminary issue:-

(1) Notwithstanding anything contained in this code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, on objection to jurisdiction of the court to entertain such suit is taken by any of the parties to the suit the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application the court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction”.

[Vide Maharashtra Act No. 65 of 1977, sec. 3 (w.e.f. 19-12-1977)].

COMMENTS

(i) The appropriate form for resolution of an industrial dispute is the forum constituted under Industrial Disputes Act, 1947. Jurisdiction of Civil Court is impliedly barred in such cases. C.T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997.

(ii) Telephone bill—Jurisdiction of Civil Court—The Civil Court has jurisdiction to enforce the right of a subscriber under section 7B of the Telegraph Act; Union of India v. Sasi S., AIR 1999 Ker 336.

(iii) The application for grant of interim relief would not be disposed of till decision on question of jurisdiction although ad-interim relief can be granted in view of provisions under section 9A(2); ICICI Ltd. v. Sri Durga Bansal Fertilizers Ltd., AIR 1999 Bom 402.

(iv) Under section 9 of the Code of Civil Procedure, the jurisdiction of Civil Court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away; Union of India v. Sasi S., AIR 1999 Ker 336.

1. Explanation renumbered as Explanation I thereof by Act No. 104 of 1976, Sec. 5 (w.e.f. 1-2-1977).
2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10. Stay of suit.

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.

COMMENTS

(i) The language of section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute; National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.

(ii) Two suits—Between same parties—Involving same subject‑matter and same questions—Held, subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
2. Subs. by A.O. 1937, for “the G.G. in C.”
3. The words “or the Crown Representative” omitted by the A.O. 1948.
4. Subs. by the A.O. 1950, for “His Majesty in Council”.

11. Res judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

COMMENTS

(i) The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principles of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking procedural principle; Management of Sonepat Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050.

(ii) There is a distinction between issue estoppel and res judicata. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality whereas the doctrine of issue estoppel is invoked against the party. If such issue is decided against him, he would be estopped from raising the same in the latter proceedings. The doctrine of res judicata creats a different kind of estoppel viz. estoppel by Accord; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(iii) First writ petition filed on the ground of apprehended bias and subsequent second petition was filed on allegations of actual bias, is not barred by res judicata; G.N. Nayak v. Goa University, AIR 2002 SC 790.

(iv) Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis of which the said rule rests is founded on the consideration of public policy; Sumer Mal v. State of Rajasthan, AIR 2000 Raj 1.

(v) The technical principle of res judicata would not be operative more so, if substantial change in circumstances is averred and found prima facie justified; Smt. Rehana Parveen v. Naimuddin, AIR 2000 MP 1.

(vi) Assuming, the cause of action in both the suits was based upon title in the suit land and was akin in all the cases, yet, as referred to above, in as much the earlier two suits were dismissed as withdrawn with permission to file fresh on the same cause of action, third suit will not be barred by any principle of law; Harbhagwan v. Smt. Punni Devi, AIR 1999 P&H 223.

(vii) Where the Sangh has been duly represented in the previous court proceedings and were litigating bona fidely which resulted in failure cannot be allowed to lay any objection in execution or to plead nullity of decree hence doctrine of res judicata applies. The decree of ejectment will bind every member of Sangh; Singhai Lal Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna, JT 1996(3) SC 64.

1. Ins. by Act No. 104 of 1976, sec. 6 (w.e.f. 1-2-1977).

12. Bar to further suit.

Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of

1[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

14. Presumption as to foreign judgments.

The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

15. Court in which suits to be instituted.

Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject-matter situate.

Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.– In this section “property” means property situate in 1[India].

COMMENTS

Where the property mortgaged as collateral security for loan advanced to defandant by a bank situated at place ‘J’ then the suit for foreclosure by the bank can only be instituted before Civil Court at place ‘J’; Central Bank of India v. Eleena Fasteners (P) Ltd., AIR 1999 HP 104.

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951).

17. Suits for immovable property situate within jurisdiction of different Courts.

Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction :

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

19. Suits for compensation for wrongs to person or movables.

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

20. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

1[* * *]

2[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in 3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant object, the suit cannot proceed without the leave of the Court.

COMMENTS

(i) Facts pleaded which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. For that fact pleaded must have relevance to the lis/dispute; Union of India v. Adani Exports Ltd., AIR 2002 SC 126.

(ii) Where the agreement stated that jurisdiction regarding all disputes is at Delhi where the agreement has been signed and executed while the agreement by parties was not signed at Delhi but at some other place, then the agreement cannot be said to be conferring exclusive jurisdiction to Civil Court at Delhi. Party can file a suit under section 20(c) at place where cause of action wholly or partly arose; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

(iii) Where the agreement was an agreement for sale of movable property then sections 16 and 19 would not govern the cause of action in such case but section 20 of the Code would be attracted for determining jurisdiction of Court; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

1. Explanation I omitted by Act No. 104 of 1976, sec. 7 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 7, for “Explanation II” (w.e.f. 1-2-1977).
3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

21. Objections to jurisdiction.

1[(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

COMMENTS

There is no intermediary stage for raising an objection to jurisdiction except filing of written statement and taking that plea unless the matter is covered by section 9A of the Code; B.S.I. Ltd. v. M.V. “CRISTIAN-C”, AIR 1999 Bom 320.

1. Section 21 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 8 (w.e.f 1-2-1977).
2. Ins. by Act No. 104 of 1976, sec. 8 (w.e.f. 1-2-1977).

21A. Bar on suit to set aside decree on objection as to place of suing.

1[21A. Bar on suit to set aside decree on objection as to place of suing.

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

Explanation.-The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned ].

1. Ins. by Act No. 104 of 1976, sec. 9 (w.e.f. 1-2-1977).

22. Power to transfer suits which may be instituted in more than one Court.

Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

COMMENTS

(i) Transfer application with allegations against the P.O. Report from P.O. may be called only with regard to the allegations contained in the transfer application; Pushpa Devi Saraf v. Jai Narain Parasrampuria, AIR 1992 SC 1133.

(ii) Both husband and wife initiating separate proceeding at different places. Both the proceedings triable by the same court. Husband’s case to be transferred to the place where wife’s case is pending; Ms. Shakuntala Modi v. Om Prakash Bharoka, AIR 1991 SC 1104.

23. To what Court application lies.

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

2[(3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree or order.]

(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be

deemed to be a Court of Small Causes.

3[(5) A suit or proceeding may be transferred under this section from a

Court which has no jurisdiction to try it.]

1. Subs, by Act No. 104 of 1976, sec. 10 for “thereafter tries such suit” (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 10 for sub-section (3) (w.e.f. 1-2-1977).
3. Ins. by Act No. 104 of 1976, sec. 10 (w.e.f. 1-2-1977).

25. Power of Supreme Court to transfer suits, etc.

1[25. Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.]

COMMENTS

(i) In transfer of suits, appeals or other proceedings paramount consideration is that justice according to law is done; Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113.

(ii) No case can be transferred to another court unless first Court is biased or some reasonable grounds exist; Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) SCJ 180.

1. Subs. by Act No. 104 of 1976, sec. 11 for s. 25 (w.e.f. 1-2-1977).

26. Institution of suits.

1[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

2[(2) In every plaint, facts shall be proved by affidavit.]

1. Section 26 renumberd as sub-section 26(1) thereof by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).
2. Ins. by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).

27. Summons to defendants.

Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed 1[on such day not beyond thirty days from date of the institution of the suit].

1. Added by Act No. 46 of 1999, section 3 (w.e.f. 1-7-2002).

28. Service of summons where defendant resides in another State.

(1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

1[(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub-section (2), a translation of the record,-

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English,

shall also be sent together with the record sent under that sub-section].

1. Ins. by Act No. 104 of 1976, sec. 12 (w.e.f. 1-5-1977).

29. Service of foreign summonses.

1[Service of foreign summonses.

Summons and other processes issued by-

(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extent, or

(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or

(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply *†,,

may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

1. Subs. by Act 2 of 1951, sec. 6, for section 29 (w.e.f. 1-4-1951).

* The Central Government has declared that the provisions of this section shall apply to all Civil Courts in Mongolia, vide G.S.R. 622(E), dated 1st October, 2005.

† The Central Government has declared that the provisions of this Act shall apply to all Civil Courts in the Kingdom of Bahrain, vide G.S.R. 644(E), dated 22nd October, 2005.

30. Power to order discovery and the like.

Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

31. Summons to witness.

The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. Penalty for default

The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him 1[not exceeding five thousand rupees];

(d) order him to furnish security for his appearance and in default commit him to the civil prison.

1. Substituted by Act No. 46 of 1999, section 4 (w.e.f. 1 -7-2002) for “not exceeding five hundred rupees”.

33. Judgment and decree.

The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow

34. Interest

(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, 2[with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from] the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:

1[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I.-In this sub-section, “nationalised bank” means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 (5 of 1970).

Explanation II.-For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.]

(2) Where such a decree is silent with respect to the payment of further interest 3[on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

COMMENTS

(i) General provision of section 34 would authorise the Redressal Fora and Commissions to also grant interest appropriately under the circumstances of each case; Sovintorg (India) Ltd. v. State Bank of India, AIR 1999 SC 2963.

(ii) The claimants have been allowed interest on the decretal amount from the date of the decree though the amount of compensation was quantified only from the date of the passing of the decree. In such circumstances the direction of the Division Bench in the matter of award of interest is also not liable to be interfered; Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929.

1. Added by Act No. 104 of 1976, sec. 13 (w.e.f. 1-7-1977).
2. Subs. by Act 66 of 1956, sec. 2, for certain words (w.e.f. 1-1-1957)
3. Subs. by Act 66 of 1956, sec. 2, for “on such aggregate sum as aforesaid” (w.e.f. 1-1-1957)

35. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

1[***]

COMMENTS

(i) Employer committed default in not remitting premium from salary of an employee to LIC, Employer was directed to pay cost of proceedings to heirs of employee; Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

(ii) It is necessary to discourage people from bringing petitions which are motivated by mere personal interests in the name of public interest, for which they have no locus standi. To prevent and penalise such abuse of the process of the Court in the garb of public interest, the Court invoked this section and imposed a cost of Rs. 10,000 on the petitioners; Prayag Vyapar Mandal v. State of Uttar Pradesh, AIR 1997 All 1.

1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

35A. Compensatory costs in respect of false or vexatious claims or defenses.

1[Compensatory costs in respect of false or vexatious claims or defenses.

(1) If any suit or other proceedings 2[including an execution proceedings but 3[excluding an appeal or a revision]] any party objects to the claim of defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, 4[if it so thinks fit] may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding 5[three thousand rupees] or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) 6[or under a corresponding law in force in 7[any part of India to which the said Act does not extend]] and not being a Court constituted 8[under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided, further, that the High Court may limit the amount or class of Courts is empowered to award as costs under this Section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

STATE AMENDMENTS

Uttar Pradesh-(i) For sub-section (1) of section 35 A substitute the following.

“(1) If any suit or other proceedings including proceedings in execution, but not being an appeal or revision, the court finds that the claim or defence or any part thereof is false or vexatious to the knowledge of the party by whom it has been put forward and if such claim or defence or such part is disallowed, abandoned or withdrawn in whole or in part, the court may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the successful party or costs by way of compensation irrespective of the decisions on other issues in the case”.

[Vide U.P. Act No. 24 of 1954, sec. 2 Sch., Item 5, Entry 1 (w.e.f. 30-11-1954)].

(ii) After sub-section (1) insert the following sub-section, namely:-.

“(1-A) The provisions of sub-section (1) shall mutatis mutandis apply to an appeal where the appellate Court confirms the decision of the trial court and the trial court has not awarded or insufficient, compensatory cost under that sub-section.

[Vide U.P. Act No. 57 of 1976, sec. 2 (w.e.f. 1-1-1977)].

1. Section 35A was ins. by Act 9 of 1922, sec. 2, which, under section 1(2) thereof may be brought into force in any State by the State Government on any specified date. It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.
2. Subs. by Act 66 of 1956, sec. 4, for “not being an appeal” (w.e.f. 1-1-1957).
3. Subs, by Act No. 104 of 1976, sec. 14, for “excluding an appeal” (w.e.f. 1-2-1977).
4. Subs. by Act 66 of 1956, sec. 4 for certain words (w.e.f. 1-1-1957).
5. Subs. by Act No. 104 of 1976, sec. 14 for “one thousand rupees” (w.e.f. 1-2-1977).
6. Ins. by Act 2 of 1951, sec. 7 (w.e.f. 1-4-1951).
7. Subs. by the Adoptation of Laws (No. 2) Order, 1956, for “a Part B State”.
8. Ins. by Act 2 of 1951, sec. 7, for “under that Act” (w.e.f. 1-4-1951).

35B. Costs for causing delay.

1[35B. Costs for causing delay.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of-

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation.-Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1) shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]

1. Ins. by Act No. 104 of 1976, sec. 15 (w.e.f. 1-2-1977).

36. Application to orders

1[36. Application to orders

The provisions of this Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment an order).]

1. Subs, by Act No. 104 of 1976, sec. 16 for s. 36 (w.e.f. 1-2-1977).

37. Definition of Court which passed a decree.

The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

1[Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]

1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

38. Court by which decree may be executed.

A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.

COMMENTS

(i) Retransfer of execution proceedings at the instance of the judgment debtors do not preclude the decree holders from initiating fresh execution proceedings against other judgement debtors at original court; Om Prakash v. M/s. Hargovind Raj Kumar, AIR 1993 Raj 68.

(ii) Injunction decree is not enforceable. However, it can be enforced by seeking police aid on necessary directions from the Court; Matha Gavarayya v. District Collector, E.G. Distt., AIR 1993 AP 103.

39. Transfer of decree.

(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court 1[of competent jurisdiction],-

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

1[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]

2[(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

STATE AMENDMENTS

Uttar Pradesh-Sub-section (3) of section 39 shall be substituted.

“(3) For the purpose of this section, a court shall be deemed to be a court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits if any of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit”. [Vide U.P. Act No. 31 of 1978, sec. 2 (w.e.f. 1-8-1978)].

1. Ins. by Act No. 104 of 1976, S. 18 (w.e.f. 1-2-1977).
2. Ins. by CPC Act No. of 2002 section 2 (w.e.f. 1 -7-2002).

40. Transfer of decree to Court in another State.

Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.

41. Result of execution proceedings to be certified.

The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42. Powers of Court in executing transferred decree.

1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

2[(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the Court under that sub-section shall include the following powers of the Court passed the decree, namely:-

(a) power to send the decree for execution to another Court under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely-

(a) power to order execution at the instance of the transferee of the decree;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]

STATE AMENDMENT

Uttar Pradesh-Section 42 shall be substituted by following.

“42. Power of Court in executing transferred decree:

(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely-

(a) power to send the decree for execution to another court under section 39.

(b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50.

(c) power to order attachment of a decree.

(d) power to decide any question relating to the bar of limitation to the

executability of the decree.

(e) power to record payment or adjustment under Rule 2 of order XXI.

(f) power to order stay of execution under Rule 29 Order XXI,

(g) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI.

(3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree.”

[Vide U.P. Act No. 14 of 1970, sec. 2 (w.e.f. 8-4-1970)].

1. Section 42 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977)
2. Ins. by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977).

43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.

1[Execution of decrees passed by Civil Courts in places to which this Code does not extend.

Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends].

1. Subs. by Act 2 of 1951, sec. 8, for section 43 (w.e.f. 1-4-1951)

44. Execution of decrees passed by Revenue Court in places to which this Code does not extend.

1[Execution of decrees passed by Revenue Court in places to which this Code does not extend.

The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State].

1. Subs. by Act 2 of 1951, sec. 9, for section 44 (w.e.f. 1-4-1951)

44A. Execution of decrees passed by Courts in reciprocating territory.

1[44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of 2[***] any reciprocating territory has been filed in a District Court, the decree may be executed in 3[India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

4[Explanation 1- “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

1. Ins. by Act 8 of 1937, sec. 2
2. The words “United Kingdom or: omitted by Act 71 of 1952, sec. 2
3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
4. Subs. by Act 71 of 1952, sec. 2, for Explanation 1 to 3.

45. Execution of decrees outside India.

1[45. Execution of decrees outside India.

So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established 2[***] by the authority of the Central Government3[outside India] to which the State Government has by notification in the Official Gazette declared this section to apply].

STATE AMENDMENTS

Pondicherry-After section 45 insert the following:-

“45-A. Execution of decrees etc. passed or made before the Commencement of the Code in Pondicherry- Any Judgment, decree or order passed or made before the Commencement of this Code by any Civil Court in the Union Territory of Pondicherry shall for the purpose of execution be deemed to have been passed or made under this Code.

Provided that nothing contained in this section shall be construed as extending the period of limitation to which any proceeding in respect of such judgment decree or order may be subject.”

[Vide Act No. 26 of 1968, sec. 3(i) and Sch., Pt II (w.e.f. 5-9-1968)].

1. Subs. by the A.O. 1937, for section 45.
2. The words “or continued” omitted by the A.O. 1948.
3. Subs. by the A.O. 1950, for “in any Indian State.”

46. Precepts.

(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property. Questions to be determined by Court executing decree

47. Questions to be determined by the Court executing decree

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

1[* * * *]

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

2[Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

COMMENTS

(i) Executing court has to first decide whether preliminary decree in question is severable from final degree and can be executed independently. If not, then only after passing of the final decree it can be executed; Md. Serajuddin v. Md. Abdul Khalique, AIR 2005 Gauhati 40.

(ii) Once decree reached finality, it is not open to judgement-debtor to plead new facts in execution proceedings; Pothuri Thulasidas v. Potru Nageswara, AIR 2005 AP 171.

(iii) Suit was not ‘in reality’ one in the nature of execution of the earlier order of eviction in favour of plaintiff and is not barred. Suit based upon fresh cause of action. The High Court was wrong in treating present suit as one ‘virtually’ for execution of the order of eviction passed in the earlier rent control case. Hence the ban under section 47 cannot apply; Ajit Chopra v. Sadhu Ram, AIR 2000 SC 212.

(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution. Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; Kameshwar Das Gupta v. State of Uttar Pradesh, AIR 1997 SC 410.

(v) New plea cannot be allowed to be raised for the first time in execution proceedings; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vi) Execution of the decree ought not to be refused, unless the decree itself is a nullity; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vii) Injunction decree can be enforced by the legal heir of the decree holder against the J.O. after the death of the decree holder; D’souza, J. v. A. Joseph, AIR 1993 Kant 68: ILR (Kant) (1992) 2972.

(viii) Death of the decree holder during pendency of the execution proceedings. His legal representative can continue the proceedings after obtaining the succession certificate; Kariyamma v. Assistant Commissioner and Land Acquisition Officer, AIR 1993 Karn 321: 1993 (1) Civ LJ 297: 1992 (3) Cur CC 664.

(ix) In absence of any challenge to decree no objection can be raised in execution; State of Punjab v. Mohinder Singh Randhawa, AIR 1992 SC 473.

(x) Auction sale held in execution of final decree can be set aside under section 47 on displacement by Appellate Court of preliminary decree on which final decree was based; Kumar Sudhendu Narain Deb v. Renuka Biswas, AIR 1992 SC 385.

1. Sub-section (2) omitted by Act No. 104 of 1976, sec. 20 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 20 for Explanation (w.e.f. 1-2-1977). Earlier Explanation was ins. by Act 66 of 1956, sec. 5 (w.e.f. 1-1-1957).

48. Execution barred in certain cases.

Rep. by the limitation Act, 1963(36 of 1963), s. 28 (with effect from the 1st January, 1964)

49. Transferee.

Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

50. Legal representative.

(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

51. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property;

(c) by arrest and detention in prison 1[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

2[Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.]

STATE AMENDMENTS

Uttar Pradesh-In section 51 of the Code Clause (bb) shall be inserted after clause (b).

“(bb) by transfer other than sale by attachment or without attachment of any property”

[Vide U.P. Act No. 24 of 1954, sec. 2 and Sch I, Item 5, Entry 4 (w.e.f. 30-11-1954)].

COMMENTS

Money decree passed against the company and its managing director. Held, the decree is not passed against Managing Director in his individual capacity. He cannot be sent to jail in enforcement of the decree; M/s. March Ltd. (In Liqn.), Chandigarh v. M/s. Pan India Plastic Pvt. Ltd., New Delhi, AIR 1993 P&H 215: 1993 (1) Bank LT 127: 1993 (1) Land LR 431.

—————

1. Ins. by Act 104 of 1976, sec. 21 (w.e.f. 1‑2‑1977).

2. Ins. by Act 21 of 1936, sec. 2.

52. Enforcement of decree against legal representative.

(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

53. Liability of ancestral property.

For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

54. Partition of estate or separation of share.

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates.

STATE AMENDMENT

Karnataka:– For section 54, substitute the following section, namely:-

“54. Partition of Estate or sepration of share:-

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition , or the separate possession of shares and if neccessary on the report of a revenue officer, not below the rank of tehsildar or such other person as the Court may appoint as Commissioner in that behalf.”

[Vide Karnataka Act 36 of 1998, sec. 2.]

55. Arrest and detention.

(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise :

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

(2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he 1[may be discharged], if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court 2[may release] him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.

1. Subs. by Act 3 of 1921, sec. 2, for “will be dicharged”.
2. Subs. by Act 3 of 1921, sec. 2, for “shall release”.

56. Prohibition of arrest or detention of women in execution of decree for money.

Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

57. Subsistence allowance.

The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

58. Detention and release.

(1) Every person detained in the civil prison in execution of a decree shall be so detained,-

(a) where the decree is for the payment of a sum of money exceeding 12 [five thousand rupees], for a period not exceeding three months, and]

3[(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks :]

Provided that he shall be released from such detention before the expiration of the 4[said period of detention]-

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance :

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

5[(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 6[two thousand rupees.]]

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

1. Subs, by Act No. 104 of 1976, sec. 22, for “fifty rupees, for a period of six months, and” (w.e.f. 1-2-1977).
2. Subs, by Act No. 46 of 1999, section 5 for “one thousand rupees”, (w.e.f. 1-7-2002).
3. Clause (b) subs. by Act 104 of 1976, sec. 22 (w.e.f. 1-2-1977) and again subs. by Act 46 of 1999, sec. 5 (w.e.f. 1-7-2002)
4. Subs. by Act 104 of 1976, sec. 22 for certain words (w.e.f. 1-2-1977)
5. Ins. by Act No. 104 of 1976, s. 22, (w.e.f. 1-2-1977).
6. Subs. by Act No. 46 of 1999 section 5 for “five hundred rupees” (w.e.f. 1-7-2002).

59. Release on ground of illness.

(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom,-

(a) by the State Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

60. Property liable to attachment and sale in execution of decree

160. Property liable to attachment and sale in execution of decree.—(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment‑debtor or by another person in trust for him or on his behalf:

Provided that the following properties shall not be liable to such attachment or sale, namely:—

(a) the necessary wearing‑apparel, cooking vessels, beds and bedding of the judgment‑debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed‑grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to 2[an agriculturist or a labourer or a domestic servant] and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government 3[or of a local authority or of any other employer], or payable out of any service family pension fund 4notified in the Official Gazette by 5[the Central Government or the State Government] in this behalf, and political pension;

6[(h) the wages of labourers and domestic servants, whether payable in money or in kind 7[***];]

8[(i) salary to the extent of 9[the first 10[11[one thousand rupees]] and two‑thirds of the remainder] 12[in execution of any decree other than a decree for maintenance]:

13[Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty four months, be finally exempt from attachment in execution of that decree;]]

14(ia) one‑third of the salary in execution of any decree for maintenance;]

15[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 16[1925 (19 of 1925)], for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

17[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]

18[(l) any allowance forming part of the emoluments of any 19[servant of the Government] or of any servant of a railway company or local authority which the 20[appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to 21[any such servant] while under suspension;]

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by 22[any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and

(p) where the judgment‑debtor is a person liable for the payment of land-revenue; any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.

23[Explanation I.—The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.]

24[Explanation II.—In clauses (i) and (ia)] “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.

25[Explanation 26[III].—In clause (l) “appropriate Government” means—

(i) as respect any 27[person] in the service of the Central Government, or any servant of 28[a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government;

29[***]

(iii) as respects any other servant of the Government or a servant of any other 30[***] local authority, the State Government.]

31[Explanation IV.—For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled or semi skilled labourer.

Explanation V.—For the purposes of this proviso, the expression “agriculturist” means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner, or agricultural labourer.

Explanation VI.—For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land—

(a) by his own labour, or

(b) by the labour of any member of his family, or

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.]

32[(1A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]

(2) Nothing in this section shall be deemed 33[***] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land, 34[***].

35[***]

STATE AMENDMENTS

Andhra Pradesh.—In section 60, in sub-section (1), in the proviso, in clause (g), in its application to the Andhra Area of the State of Andhra Pradesh, after the words “stipends and gratuities, allowed to pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Andhra Pradesh) (Andhra Area) Amendment Act, 1950 (34 of 1950) as amended by the Andhra Pradesh Act 9 of 1961.]

In its application to the whole of the State of Andhra Pradesh,—

A. (i) In section 60, in sub-section (i), in the proviso, after clause (k), insert the following clause, namely:—

“(kk) amount payable: under policies issued in pursuance of the rules for the Andhra Pradesh Government Life Insurance and Provident Fund and the Hyderabad State Life Insurance and Provident Fund;”

(ii) In section 60, in sub-section (1), after Explanation 2, insert the following Explanation, namely:—

“Explanation 2A.—Where any sum payable to a Government servant is exempt from attachment under the provisions of clause (kk), such sum shall remain exempt from attachment notwithstanding the fact that owing to the death of the Government servant it is payable to some other person.”

[Vide Code of Civil Procedure (Andhra Pradesh) (Telangana Area) Amendment Act 11 of 1953, as amended by the Andhra Pradesh Act 10 of 1962.]

B. (i) In section 60, in sub-section (1), in the proviso, after clause (kk), insert the following clause, namely:—

“(kkk) amounts payable under the Andhra Pradesh State Employees’ Family Benefit Fund Rules;”;

(ii) in Explanation 2 A, for the expression “clause (kk)”, substitute the expression “clauses (kk) and (kkk)”.

[Vide Andhra Pradesh Act 24 of 1979, sec. 2 (w.e.f. 5-9-1979).]

In its application to the Telangana area of the State of Andhra Pradesh in section 60, in sub-section (1):—

(i) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) pension granted or continued by the Central Government, the Government of the pre reorganisation Hyderabad State or any other State Government on account of past services or present infirmities or as a compassionate allowance; and”

(ii) after Explanation 2, insert Explanation 2A which is same as given above with the addition of the words, brackets and letters “clause (gg) or” after the words “under the provisions of”.

[Vide Andhra Pradesh Act 18 of 1953 (w.e.f. 2-12-1953).]

Chandigarh.—Same as in Punjab.

Delhi.—Same as in Punjab.

Gujarat.—In section 60, in sub-section (1),—

(a) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) stipends and gratuities allowed to pensioners of a local authority, and”

(b) in Explanation I, after the brackets and letter “(g)”, insert the brackets and letters “(gg)”.

[Vide Code of Civil Procedure (Bombay Amendment) Act, 1948 (Bombay Act 60 of 1948), sec. 2 (w.e.f. 30-11-1948).]

Haryana.—Same as in Punjab.

Himachal Pradesh.—In section 60, in sub section (1), in the proviso,—

(i) in clause (c), at the end, insert the following:—

“or compensation paid for such houses and buildings (including compensation for the materials and the sites and the land referred to above) acquired for a public purpose”;

(ii) after clause (c), insert the following, clause, namely:—

“(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a public purposes;”

[Vide Civil Procedure Code (Himachal Pradesh Amendment) Act 6 of 1956.]

Karnataka.—In section 60, in sub-section (1), in the proviso, after clause (p), insert the following clause, namely:—

‘’(pp) where the judgment‑debtor is a servant of the State Government who has insured his life under the rules in force relating to the Official Branch of the Karnataka Government Life Insurance Department,—

(1) in the case of insurance effected prior to the ninth day of May, 1911, the whole of the bonus payable or paid thereunder to such servant, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules; and

(2) in the case of insurance effected on or after the ninth day of May, 1911, and such insurance is compulsory, then the bonus in respect of the compulsory premia payable or paid to such servant, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules.”

[Vide Civil Procedure Code (Mysore Amendment) Act 14 of 1952.]

Kerala.—In section 60, in sub-section (1), in the proviso—

(i) in clause (g), after the words “stipends and gratuities allowed to pensioners”, insert the words “or of a local authority”.

[Vide Kerala Act 13 of 1957, sec. 3 (w.e.f. 1-10-1958).]

[Ed.—This amendment in clause (g) was made prior to the amendment made by the Central act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).]

(ii) after clause (g), insert the following clause, namely:—

“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala;”

[Vide Kerala Act 1 of 1988, sec. 2 (w.e.f. 5-1-1988).]

Maharashtra.—In Section 60, in sub-section (1), in the proviso—

(a) after clause (g), the following clause shall be inserted, namely:

“(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or continued by the Central Government or the Government of the former State of Hyderabad or any other State Government, on account of past services or present infirmities or as a compassionate allowance, which is not covered by clause (g);”

(b) after clause (kb), insert the following clause, namely:

“(kbb) the amounts payable under the policies issued in pursuance of the Rules for the Hyderabad State Life Insurance and provident fund, which are not covered under clause (ka) or (kb).

Explanation.—Where any sum payable to a Government servant is exempt from attachment under this clause or clause (gg) such sum shall remain exempt from attachment, notwithstanding the fact that owing to the death of the Government servant the sum is payable to some other person;”

[Vide Maharashtra Act 65 of 1977, sec. 6 (w.e.f. 19-12-1977).]

Pondicherry.— Same as in Tamil Nadu.

[Vide Pondicherry Act 26 of 1968.]

Punjab.—In its application to the State of Punjab including the Pepsu area thereof as it was immediately before the 1st November, 1956,—

(a) in section 60, in sub-section (1), in the proviso,—

(i) in clause (c), for the words “occupied by him” the following words shall be deemed to be substituted, namely:—

“not proved by the decree holder to have been let out on rent or lent to persons other than his father, mother, wife, daughter‑in‑law, brother, sister or other dependants or left vacant for a period of a year or more”.

(ii) after clause (c), insert the following clauses, namely:—

“(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of transport of draught cart and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;

(ccc) one main residential‑house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him:

Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.”

(b) In Section 60, after sub‑section (2), insert the following sub‑sections, namely:—

“(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void.

(4) For the purposes of this section the word ‘agriculturist’ shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land as defined in the Punjab Alienation of Land Act, 1900.

(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900, and every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved.

(6) No order for attachment be made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale.”

[Vide Punjab Relief of Indebtedness Act 7 of 1934, sec. 35 as amended by Punjab Acts 12 of 1940, 6 of 1942 and 14 of 1960 (w.e.f. 30-12-1960).]

Rajasthan.—In Section 60, in sub section (1), in the proviso,—

(i) in clause (b) after the word “agriculturist,” insert the words “his milch cattle and those likely to calve within two years,”;

[Vide Rajasthan Act 19 of 1958 (w.e.f. 18-4-1958).]

(ii) after clause (k), insert the following clause, namely:—

“(kk) moneys payable under Life Insurance Certificates issued in pursuance of the Rajasthan Government Servants Insurance Rules, 1953;”

(iii) In Section 60, in sub-section (1), after Explanation 3, insert the following Explanation, namely:—

“Explanation 4.—Where any money payable to a Government servant of the State is exempt from attachment under the provision contained in clause (kk), such money shall remain exempt from attachment notwithstanding the fact that owing to the death of a Government servant it is payable to some other person”.

[Vide Rajasthan Act 16 of 1957, sec. 2 (w.e.f. 6-6-1957).]

Tamil Nadu.—In section 60, in sub-section (1), in the proviso, after the words “stipends and gratuities allowed to the pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Madras Amendment) Act (34 of 1950).]

This Act has been extended to Kanya Kumari district and Shen Cottah taluk of the Tirunelveli District by the Madras by the Andhra Pradesh and Madras (Alteration Boundaries) (Act 66 of 1959) by the Madras (Added Territories) Adaptation of Laws Order, 1961.

Uttar Pradesh.—In section 60, in sub-section (1), after Explanation 1, insert the following Explanation, namely:—

“Explanation 1A.— Particulars mentioned in clause (c) are exempt from sale in execution of a decree whether passed before or after the commencement of the Civil Procedure Code (United Provinces Amendment) Act, 1948, for enforcement of a mortgage of charge thereon.”

[Vide the Code of Civil Procedure (Uttar Pradesh Amendment) Act 35 of 1948, sec. 2 (w.e.f. 28-8-1948).]

COMMENTS

Immunity from attachment with regard to residential house is not available to debtor unless he establishes connection between the agricultural operations carried on by him and the house sought to be attached; Paruchuru Narasimha Rao v. Nune Pandu Ranga Rao, AIR 1994 AP 197.

—————

1. For amendments to section 60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act, 1934 (Punjab Act 7 of 1934), sec. 35, as amended by Punjab Acts 12 of 1940 and 6 of 1942.

2. Subs. by Act 104 of 1976, sec. 23, for “an agriculturist” (w.e.f. 1-2-1977).

3. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

4. For such a notification, see Gazette of India, 1909, Pt. I, p. 5.

5. Subs. by the A.O. 1937, for “the G.G. in C.”

6. Subs. by Act 9 of 1937, sec. 2, for clauses (h) and (i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937, see Act 9 of 1937, sec. 3.

7. The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by Act 5 of 1943, sec. 2.

8. Subs. by Act 5 of 1943, sec. 2, for clause (i) and proviso.

9. Subs. by Act 26 of 1963, sec. 2, for “the first hundred rupees”.

10. Subs. by Act 104 of 1976, sec. 23, for “two hundred rupees and one-half the remainder” (w.e.f. 1-2-1977).

11. Subs. by Act 46 of 1999, sec. 6, for “four hundred rupees” (w.e.f. 1-7-2002).

12. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).

13. Subs. by Act 104 of 1976, sec. 23, for the proviso (w.e.f. 1-2-1977).

14. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).

15. Subs. by Act 104 of 1976, sec. 23, for clause (j) (w.e.f. 1‑2‑1977).

16. Subs. by Act 9 of 1937, sec. 2, for “1897”.

17. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1‑2‑1977).

18. Subs. by Act 9 of 1937, sec. 2, for clause (l).

19. Subs. by Act 5 of 1943, sec. 2, for “public officer”.

20. Subs. by the A.O. 1937, for “G.G. in C.”

21. Subs. by Act 5 of 1943, sec. 2, for “any such officer or servant”.

22. Subs. by A.O. 1937, for “any law passed under the Indian Councils Acts, 1861 and 1892”.

23. Subs. by Act 104 of 1976, sec. 23, for Explanation 1 (w.e.f. 1‑2‑1977).

24. Subs. by Act 104 of 1976, sec. 23, for “Explanation 2.—In clauses (h) and (i)” (w.e.f. 1‑2‑1977).

25. Ins. by the A.O. 1937.

26. Subs. by Act 104 of 1976, sec. 23, for “3” (w.e.f. 1‑2‑1977).

27. Subs. by Act 5 of 1943, sec. 2, for “public officer”.

28. Subs. by the A.O. 1950, for “a Federal Railway”.

29. Clause (ii) omitted by the A.O. 1948.

30. The word “railway or” omitted by the A.O. 1950.

31. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

32. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

33. The letter and brackets “(a)” rep. by Act 10 of 1914, sec. 3 and Sch. II. 34. The word “or” rep. by Act 10 of 1914, sec. 3 and Sch. II.

35. Clause (b) rep. by Act 10 of 1914, sec. 3 and Sch. II.

61. Partial exemption of agricultural produce.

The State Government 1[***] may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in exaction of a decree.

1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, sec. 2 and Sch. I

62. Seizure of property in dwelling-house.

(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house

after sunset and before sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts.

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

1[Explanation.-For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]

1. Ins. by Act No. 104 of 1976, sec. 24 (w.e.f. 1-2-1977).

64. Private alienation of property after attachment to be void.

1[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

2[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

Explanation-For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Comments

Sale of attached property before dismissal of execution application is void; Nancy John Lyndon v. Prabhati Lal Chodhury, AIR 1987 SC 2061.

1. Section 64 renumbered as sub-section (1) of that section by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).

2. Ins. by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).

65. Purchaser’s title.

Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff

[Rep. by Benami Transactions (Prohibition) Act, 1988 (45 of 1988), sec. 7 (w.e.f. 19-5-1988).]

67. Power for State Government to make rules as to sales of land in execution of decrees for payment of money.

1[(1)] The State Government 2[***] may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interests are so uncertain or undermined as, in the opinion of the State Government to make it impossible to fix their value.

3[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may 4[***] by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.]

4[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

1. Section 67 renumbered as sub-section (1) of that section by Act 1 of 1914, sec. 3.
2. The words “with the previous sanction of the G.G. in C.,” omitted by Act 38 of 1920, sec. 2 and Sch. I.
3. Added by Act 1 of 1914, sec. 3.
4. Ins. by Act No. 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).

68-72. Repealed

68.-72. Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7. (w.e.f. 1-1-1957).

73. Proceeds of execution-sale to be rateably distributed among decree-holders.

(1) Where assests are held by a Court and more persons than one have, before the receipt of such assests, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assests, after deducting the costs of realization, shall be rateably distributed among all such persons :

Provided as follows :-

(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charges the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied-

first, in defraying the expenses of the sale;

secondly, in discharging the amount due under the decree;

thirdly, in discharging the interest and principal moneys due on subsequent incumbrances (if any); and

fourthly, rateably among the holders of decrees for the payment of money against the judgment debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

COMMENTS

The debts due to the State are entitled to priority over all other debts; Union of India v. Somasundaram Mills (P) Ltd., AIR 1985 SC 407.

74. Resistance to execution.

Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

75. Power of court to issue commissions.

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

1[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

1. Ins. by Act No. 104 of 1976, sec. 26 (w.e.f. 1-2-1977).

76. Commission to another Court.

(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

77. Letter of request.

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within 1[India].

1. Subs. by Act 2 of 1951, sec. 3, for “the States”.

78. Commissions issued by foreign Courts.

1[78. Commissions issued by foreign Courts.

Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issue by or as the instance of-

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India, or

(c) Courts of any State or country outside India.]

1. Subs. by Act 2 of 1951, sec. 11, for section 78 (w.e.f. 1-4-1951).

79. Suits by or against Government

1[Suits by or against Government

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government,2[the Union

of India], and

(b) in the case of a suit by or against a State Government, the State.

1. Subs. A.O. 1948, for section 79.
2. Subs. by the A.O. 1950, for “the Dominion of India”.

80. Notice.

1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-

(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;

6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];

8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***]

11[***]

and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]

STATE AMENDMENTS

Madhya Pradesh –(i) After sub-section (3) of Section 80 the following inserted:

“(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)”.

(ii) In sub-section (1) of section 80 for the words “sub-section (2)” substitute “sub-section (2) or (4)”. [M.P. Act No. 29 of 1984].

1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for “No suit shall be instituted’ (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for “shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for “instituted against the Crown”.
4. Subs. by the A.O. 1937, “in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district”.
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for “a State Government” (w.e.f. 5-6-1964).
10. The word “and” omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).

81. Exemption from arrest and personal appearance.

In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

82. Execution of decree.

1[(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2)].

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of

2[such decree].

3[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

(a) is passed or made against 4[the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

1. Subs, by Act No. 104 of 1976 for sub-section (1) (w.e.f. 1-2-1977). 
2. Subs, by Act No. 104 of 1976 for “such report” (w.e.f. 1-2-1977).
3. Ins. by Act 32 of 1949, sec. 2.
4. Subs. by the A.O. 1950, for “the Dominion of India”.

83. When aliens may sue.

Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court.

Explanation-Every person residing in a foreign country, the Government of i which is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

84. When foreign State may sue.

A foreign State may sue in any competent Court:

Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.

85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.

(1) The Central Government may, at the request of the Ruler of a foreign State or at the request of any person competent in the opinion of the Central Government to act on behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of such Ruler.

(3) A person appointed under this section may authorise or appoint any other persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

86. Suits against foreign Rulers, Ambassadors and Envoys.

(1) No [* * * *]1 foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property sue without such consent as aforesaid 2[a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which 3[the foreign State] may be sued, but it shall to be given, unless it appears to the Central Government that 3[the foreign State].

(a) has instituted a suit in the Court against the person desiring to sue 4[it], or

(b) 5[itself] or another, trades within the local limits of the jurisdiction of the Court, or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) has expressly or impliedly waived the privilege accorded to 4[it] by this section.

6[(3) Except with the consent of the Central Government, certified in writing by a Secretary to that government, no decree shall be executed against the property of any foreign State.]

(4) The proceeding provisions of this section shall apply in relation to –

7[(a) any Ruler of a foreign State;]

8[(aa)] any ambassador or Envoy of a foreign State ;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff 9[of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.

10[as they apply in relation to a foreign State].

7[(5) the following persons shall not be arrested under this Code, namely : –

(a) any ruler of a foreign State;

(b) any Ambassador or Envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]

1. The words “Ruler of a” omitted by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 29, for “a Ruler” (w.e.f. 1-2-1977).
3. S ubs. by Act No. 104 of 1976, sec. 29, for “the Ruler” (w.e.f. 1 -2-1977).
4. Subs, by Act No. 104 of 1976, sec. 29, for “him” (w.e.f. 1-2-1977).
5. Subs, by Act No. 104 of 1976, sec. 29, for “himself (w.e.f. 1- 2-1977).
6. Subs, by Act No. 104 of 1976, sec. 29, for sub-section (3) (w.e.f. 1-2-1977).
7. Ins. by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
8. Cl. (a) re-lettered as cl. (aa) by Act No. 104 of 1976, sec. 29, (w.e.f. 1-2-1977).
9. Subs, by Act No. 104 of 1976, sec. 29, for “or retinue of the Ruler, Ambassador” (w.e.f. 1-2-1977).
10. Subs, by Act No. 104 of 1976, sec. 29, for “as they apply in relation to the Ruler of a foreign State” (w.e.f. 1-2-1977).

87. Style of foreign Rulers as parties to suits.

The Ruler of a foreign State may sue, and shall be sued, in the name of his State:

Provided that in giving the consent referred to in section 86, the Central Government may direct that the Ruler may be sued in the name of an agent or in any other name.

87A. Definitions of “foreign State” and “Ruler”.

(1) In this Part,-

(a) “foreign State” means any State outside India which has been recognised by the Central Government; and

(b) “Ruler”, in relation to a foreign State, means the person who is for the time being recognized by the Central Government to be the head of that State.

(2) Every Court shall take judicial notice of the fact –

(a) that a state has or has not been recognized by the Central Government;

(b) that a person has or has not been recognized by the Central Government to be the head of a State.

87B. Applications of sections 85 and 86 to Rulers of former Indian States.

1[(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceedings arising out of such suit, the provisions of section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State].]

(2) In this section-

(a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this;2[***]

3[(b) “commencement of the Constitution” means the 26th day of January, 1950; and

(c) “Ruler” in relation to a former Indian State, has the same meaning as in article 363 of the Constitution.]

1. Subs. by Act 54 of 1972, sec. 3, for sub-section (1) (w.e.f. 9-9-1972).
2. The word “and” omitted by Act 54 of 1972, sec. 3 (w.e.f. 9-9-1972).
3. Subs. by Act 54 of 1972, sec. 3, for clause (b) (w.e.f. 9-9-1972).

88. Where interpleader suit may be reinstituted.

Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

89. Settlement of disputes outside the Court

1[89. Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

1. Sec. 89 was repealed by Act 10 of 1940, sec. 49 and Sch. II and again added by Act No. 46 of 1999, section 7 (w.e.f. 1-7-2002).

90. Power to state case for opinion of Court.

Where any person agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

91. Public nuisances and other wrongful acts affecting the public.

1[Public nuisances and other wrongful acts affecting the public]

[(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

1. Subs. by Act No. 104 of 1976, sec. 30 for the former heading (w.e.f. 1-2-1977).

92. Public charities.

1[Public charities.

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 2[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a Aectee,-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

3[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];

(d) directing accounts and inquires;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) 4[or by any corresponding law in force in 5[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.

6[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :-

(a) where the original purposes of the trust, in whole or in part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of

using the property available by virtue of the trust, regard being had to the spirit of the trust.]]

STATE AMENDMENT

Uttar Pradesh-After clause (b) of sub-section (1) of section 92 insert the following: “

(bb) for delivery of possession of any trust property against a person who has ceased to be trustee or has been removed.”

[Vide U.P. Act No. 24 of 1954, sec. 2 and Sch., Item 5, Entry 5 (w.e.f. 30-11-1954).]

COMMENTS

(i) Suit against the appointment of trustees—Held, court cannot enquire whether the trustees were validly appointed under provisions of section 92; Duttgir Mahant v. Rishi Ram, AIR 1993 P&H 231: 1993(1) Cur LJ 209: (1993) 1 Pun LR 95.

(ii) Sale of property of religious and charitable endowments by private negotiation should not be permitted by court unless justified by special reasons; R. Venugopala Naidu v. Venkatarayulu Naidu Charities, AIR 1990 SC 444.

1. Section 92 shall not apply to any religious trust in Bihar.
2. Subs. by Act No. 104 of 1976 for “consent in writing of the Advocate-General” (w.e.f. 1-2-1977).
3. Ins. by Act 66 of 1956, sec. 9 (w.e.f. 1-1-1957).
4. Ins. by Act 2 of 1951, sec. 13 (1-4-1951).
5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “a Part B State”.
6. Ins. by Act No. 104 of 1976, sec. 31 (w.e.f. 1-2-1977).

93. Exercise of powers of Advocate-General outside presidency-towns.

The powers conferred by sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

94. Supplemental Proceedings.

In order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him so the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

COMMENTS

(i) Provisional admission in post‑graduate medical course should not be normally granted in absence of special reason; U.P. Junior Doctors’ Action Committee v. Dr. B. Sheetal Nandwani, AIR 1992 SC 671.

(ii) Supreme Court will abstain from passing interlocutory order if it has effect or tend to be susceptible of an inference of pre-judging some important and delicate issue in main matter; Sub‑Committee of Judicial Accountability v. Union of India, AIR 1992 SC 63.

95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.

Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,-

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount,1[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the 2[expense or injury (including injury to reputation) caused to him];

Provided that a Court shall not award, under this section, an amount exceeding the limits of its peculiar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

1. Subs, by Act No. 46 of 1999, section 8 for “not exceeding one thousand rupees” (w.e.f. 1 -7-2002).
2. Subs. by Act No. 104 of 1976, sec. 32 for “expense or injury caused to him” (w.e.f. 1-2- 1977).

96. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex pane.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees].]

COMMENTS

(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into account. It may be permitted to be taken into account by appellate court by means of amendment of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could cause prejudice to vested right of plaintiff and render him remedied; Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24.

(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before the Ist appellate court; K. Shivalingaiah v. B.V. Chandra Shekara Gowda, AIR 1993 Kant 29: 1992 (2) Kant LJ 536: ILR (Kar) (1992) 1996.

1. Ins. by Act No. 104 of 1976, sec. 33 (w.e.f. 1-2-1977).2. Subs. by Act No. 46 of 1999, section 9 for “three thousand rupees” (w.e.f. 1-7-2002).

97. Appeal from final decree where no appeal from preliminary decree.

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :

Provided that where the Bench hearing the appeal is 1[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

2[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

COMMENTS

Reference for opinion is permissible only if the judges who have heard the case have not pronounced their final judgments; Nirmal Swaran Singh v. Rozu‑ud‑din, AIR 1993 All 121.

1. Subs, by Act No. 104 of 1976, sec. 34 for certain words (w.e.f. 1-2-1977).2. Ins. by Act 18 of 1928, sec. 2 and Sch. I.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

No decree shall be reversed or “substantially varied, nor shall any case be remanded in appeal on account of any mis joinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

1[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

1. Ins. by Act. No. 104 of 1976, sec. 35 (w.e.f. 1-2-1977).

99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

1[99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

1. Ins. by Act. No. 104 of 1976, sec. 36 (w.e.f. 1-2-1977).

100. Second appeal.

1[100. Second appeal

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed exparte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

COMMENTS

(i) The scope of exercise of the jurisdiction by the High Court in second appeal under section 100 is limited to the substantial question of law. To be a substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court; Govindaraja v. Mariamman, AIR 2005 SC 1008.

(ii) The High Court was not justified in setting aside the concurrent finding of fact on sub-letting and nuisance without formulating any substantial question of law; Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325.

(iii) The High Court, in second appeal is not justified in setting aside a mixed question of law and fact; Ram Kumar Agarwal v. Thawar Dass (dead) by LR, AIR 1999 SC 3248.

(iv) The High Court, should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-un-Niswan, AIR 1999 SC 3067.

(v) Where the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in second appeal, treating as substantial question of law; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213.

(vi) The findings of fact arrived by the courts below are binding in second appeal; Smt. Bismillah Begum (dead) by LRs v. Rahmatullah Khan (dead) by LRs, AIR 1998 SC 970.

(vii) Conclusion about limitation is a finding of fact and is not open for interference in the second appeal; Smt. Saraswatidevi v. Krishnaram Baldeo Bank Limited, AIR 1998 MP 73.

(viii) Once the evidence on which the courts of fact have acted was admissible and relevant, party cannot be allowed to raise that said evidence is insufficient to justify the finding of facts in second appeal; Ramanuja Naidu v. Kanniah Naidu, JT 1996(3) SC 164.

(ix) Second Appeal—Interference with the factual finding is permissible only if the said finding is unreasonable; Sadhu Mehar v. Rajkumar Patel, AIR 1994 Ori 26.

(x) Second Appeal—Interference with factual findings recorded by the court below is permissible in cases of non‑consideration of relevant evidence; Nalini v. Padmanabhan Krishnan, AIR 1994 Ker 14.

(xi) Question of fact can not be allowed to be raised in second appeal; Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149.

(xii) Interference with finding of fact is permissible if the court below ignored weight of evidence on record altogether; Ajab Singh v. Shital Puri, AIR 1993 All 138: 1993 All LJ 548.

(xiii) Erroneous application of law—Second appeal is maintainable If it raises a substantial question; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993(1) Cal HN 307: 1993 (1) Cal LJ 193.

(xiv) Interpretation of the contract involves a substantial question of law. It can be examined in second appeal; Smt. Vidya Wati through her LRs. v. Hans Raj through his L.Rs., AIR 1993 Del 187: 1993 Rajdhani LR 274.

(xv) Perverse finding recorded by the court below—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993 (1) Cal LJ 193.

(xvi) Factual finding based on no evidence—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993(1) Cal LJ 193.

(xvii) Finding of fact recorded by the first appellate court cannot be interfered with in second appeal unless perverse; Padmashree S.N. Swamy v. Smt. Gowramma, AIR 1993 Kant 208: 1992 (3) Kant LJ 244: 1993 (2) APLJ 18.

(xviii) Finding of fact cannot be questioned in second appeal; Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115.

(xix) In absence of substantial question of law on current finding of facts it cannot be interfered with in second appeal; Kehar Singh v. Yash Pal, AIR 1990 SC 2212.

1. Subs, by Act No. 104 of 1976, sec. 37 for Section 100 (w.e.f. 1-2-1977).

100A. No further appeal in certain cases.

1[100A. No further appeal in certain cases.

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.]

1. Section 100A ins. by Act 104 of 1976, sec. 38 (w.e.f. 1-2-1977) and substituted by Act No. 46 of 1999, section 10 and now further has been substituted by Act No. 22 of 2002, section 4 (w.e.f. 1-7-2002).

101. Second appeal on no other grounds.

No second appeal shall lie except on the ground mentioned in section 100.

102. No second appeal in certain cases.

1[102. No second appeal in certain cases.

No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.]

1. Section 102 was substituted by Act No. 46 of 1999, section 11 and now further substituted by Act No. 22 of 2002, section 5 (w.e.f. 1-7-2002).

103. Power of High Court to determine issues of fact.

1[103. Power of High Court to determine issues of fact.

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.]

1. Subs, by Act No. 104 of 1976, sec. 40 for section 103 (w.e.f. 1-2- 1977).

104. Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

1[***]

2[(ff) an order under section 35A;]

3[(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules;

2[Provided that not appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

1. Clauses (a) to (f) omitted by Act 10 of 1940, sec. 49 and Sch. III.
2. Ins. by Act 9 of 1922, sec. 3.
3. Ins. by Act No. 104 of 1976, sec. 41 (w.e.f. 1-2-1977).

105. Other orders.

(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but. where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand 1[*****] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

1. The words “made after the commencment of this Code” omitted by Act No. 104 of 1976, sec. 42 (w.e.f. 1-2-1977).

106. What Courts to hear appeals.

Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

107. Powers of Appellate Court.

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

COMMENTS

Neither the issue framed nor evidence led in trial court in respect of mixed question of fact and law. New plea raised before the Supreme Court not permissible on the ground that the establishment of fact by evidence for decision is necessary; Vasantha Viswanathan v. V.K. Elayalwar, (2001) 8 SCC 133.

108. Procedure in appeals from appellate decrees and orders.

The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

109. When appeals lie to the Supreme Court.

1[109. When appeals lie to the Supreme Court.

Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies-

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.]

1. Subs. by Act 46 of 1973, sec. 2, for section 109 (w.e.f. 29-11-1973).

110. Value of subject matters.

Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), sec. 3.

111. Bar of certain appeals.

Rep. by the A.O. 1950.

111A. Appeals to Federal Court.

1[111A. Appeals to Federal Court.

Rep. by the Federal Court Act, 1941 (21 of 1941), sec. 2.]

1. Ins. by the A.O. 1937

112. Savings.

1[(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.

1. Subs. by the A.O. 1950, for sub-section (1).

113. Reference to High Court

Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

1[Provided that where the Court is satisfied that a case pending before it involve; a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which ii necessary for the disposal of the case, and is of opinion that such Act, Ordinance Regulation or provision is invalid or inoperative, but has not been so declared b; the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court.

Explanation.-In this section “Regulation” means any Regulation of the Bengal Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897) or in the General Clauses Act of a State.]

STATE AMENDMENTS

Andhra Pradesh-In the Explanation to section 113 after the words “any Regulation of the Bengal, Bombay or Madras Code” insert the words “or any Regulation of the Madras Code in force, in the State of Andhra as it existed immediately before the 1st Nov. 1956”.

[Vide Andhra Pradesh Adoption of Laws (Second Amendment) Orders, 1954 (w.e.f. 1-10-1953) and Andhra Pradesh A.L. (Amendment) Order 1957 (w.e.f. 1-11-1956).]

Tamil Nadu-In the Explanation to section 113 after the words “any Regulation of the Bengal, Bombay or Madras Code” insert the words “or any Regulation of the Madras Code in force in the territories specified in Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959.”

[Vide Madras (Added Territories) Adaptation of Laws Order, 1961 (w.e.f. 1-4-1960).]

1. Added by Act 24 of 1951, sec. 2 (w.e.f. 1-4-1951).

114. Review.

Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Court, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Comments

(i) Subsequent event may be taken into consideration by the Court, while exercising review jurisdiction; Board of Control of Cricket in India v. Netaji Cricket Club, AIR 2005 SC 592.

(ii) The review petition was filed well within the time and since to review petition was not being decided by the High Court, the appellant filed the special leave petition against main judgment of High Court. Hence the Supreme Court overruled the contention that earlier special leave petition filed by appellant having been dismissed by the Supreme Court the second SLP was not maintainable being barred by the principle of res judicata; K. Rajamouli v. A.V.K.N. Swamy, AIR 2001 SC 2316.

115. Revision.

1[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

2[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

3[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]

4[(3) A revision shall not operate as a stay of suit or other proceeding before the , Court except where such suit or other proceeding is stayed by the High Court.]

3[Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

STATE AMENDMENTS

Madhya Pradesh-For Section 115 of the principal Act, the following Section substituted.

“115. Revision.-

The High Court may call for the record of any cases which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit;

Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where:-

(a) the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or proceeding; or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.”

[Vide M.P. Act 4 of 1994, sec. 2 (w.e.f. 15-3-1994).]

Orissa.-In its application to the State of Orissa, for section 115, substitute the following:-

“115. Revision.-

The High Court, in eases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit;

Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where,-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

Explanation.-In this section, the expression “any case which has been decided” includes any order deciding an issue in the course of a suit or other proceeding.”

Saving:-

The amendment made this Act shall not effect the validity, invalidity, effect or consequence of anything already done of suffered, or any jurisdiction already exercised, and any proceeding instituted or commenced in the High Court under section 115 of the Code of Civil Procedure, 5 of 1908, prior to the commencement of this Act shall, notwithstanding such amendment, continue to be heard and decided by such Court.”

[Vide Orissa Act 26 of 1991, sec. 2 (w.e.f. 7-11-1991).]

Uttar Pradesh.-In its application to the State of Uttar Pradesh, for section 115, substitute the following:-

“115 Revision.-

The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U.P. Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made:

Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this Section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.

Explanation.-In this section, the expression “any case which has been decided” includes any order deciding an issue in the course of a suit or other proceeding.”

Transitory Provisions:-

Where a proceeding of the nature in which District Court may call for the record and pass orders under section 115 of the said Code as substituted by this Act was pending immediately before August 1, 1978.- (a) In the District Court, such Court shall proceed to dispose of the same as if the provisions of the same as if the provisions of this Act were in force at all material times;

(b) in the High Court, such Court shall proceed to dispose of the same as if this Act has not come into force.”

[Vide U.P. Acts 31 of 1978, Sections 3 and 5 (w.e.f. 1-8-1978) as amended by Uttar Pradesh Act 17 of 1991, sec. 7 (w.e.f. 15-1-1991).]

West Bengal-After Section 115 of the Code the following section 115A inserted:

“115A. District Court’s powers of revision-

(1) A District Court may exercise all or any of the power which may be exercised by the High Court under section 115.

(2) Where any proceedings by way of revision is commenced before a District Court in pursuance of the provision of sub-section (1), the provisions of section 115 shall, so for as may be, apply to such proceeding and references to the said section 60 the High Court shall be construed as reference to the District Court.

(3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.

(4) If any application for revision has been made by any party either to the High Court under section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.

(5) A Court of an Additional Judge shall have and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court”

[Vide West Bengal Act No. 15 of 1988, sec. 3 (w.e.f. 1-2-1989).]

COMMENTS

(i) Order allowing proposed amendment would not also come under clause (b) of section 115(1). Under revisional powers of High Court this cannot be interfered with by High Court. Prem Bakshi v. Dharam Dev, AIR 2002 SC 559.

(ii) The objections filed by the petitioners were under Order 21, rule 36 C.P.C. and the only remedy against it is revision under section 115 C.P.C. The Appellate Authority has rightly dismissed the appeal in limine as not maintainble; Naresh Sharma v. Ramesh Chand, AIR 2000 HP 6.

(iii) Revisional court ought to consider and discuss evidence on which finding was based by lower authorities. Mere statement by Revisional court that there was evidence to show that the bona fides of the landlord was proved is not sufficient; K. Urmila v. Ram Kumar Verma, AIR 1998 SC 1188.

(iv) Revision against erroneous finding with regard to admissibility of evidence was held to be competent; Kundan Mal v. Nand Kishore, AIR 1994 Raj 1.

(v) Revisional jurisdiction of the High Court—Validity of an order can be examined even if no reason has been specified for order except exercise of power under a rule; Charles Mantosh v. Dalhousie Institute, AIR 1993 Cal 232.

(vi) Revision against an order admitting documents after arguments were over is not maintainable; Hemendra Chaudhary v. M/s. Punjab National Bank, AIR 1993 All 49: 1993(21) All LR 218: 1993 All LJ 76.

(vii) Ex parte decree of ejectment—Revision against—Death of one of the co-landlords during pendency of the revision—No substitution—Held, revision would not abate; Ram Gopal Sharma v. Ist Additional District Judge, Meerut, AIR 1993 All 124: 1992 All CJ 1026.

(viii) Revisional court is not competent to reappreciate evidence; Padartha Amat v. Siba Sahu, AIR 1993 Ori 92.

(ix) Under section 115 of the Code, the High Court connot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfare with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction; Masjid Kacha Tank, Nahan v. Tuffail Mohammed, AIR 1991 SC 455.

1. Sec. 115 re-numbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
2. Ins. by Act 104 of 1976, sec. 43 (w.e.f. 1-2-1977) and subs. by Act 46 of 1999, sec. 12 (w.e.f. 1-7-2002).
3. Ins. by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
4. Ins. by Act No. 46 of 1999, section 12 (w.e.f. 1-7-2002).

116. Part to apply only to certain High Courts.

This Part applies only to High Courts 1[not being the Court of a Judicial Commissioner].

1. Subs. by Act 2 of 1951, sec. 14, for “CHARTERED HIGH COURTS” (w.e.f. 1-4-1951).

117. Application of Code to High Court.

Save as provided in this Part or in Part X or in rules, the provisions of this Court shall apply to such High Courts.

118. Execution of decree before ascertainment of costs.

Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs;

and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

119. Unauthorized persons not to address Court.

Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him I so to do, or to interfere with the power of the High Court to make rules concerning I advocates, vakils and attorneys.

120. Provisions not applicable to High Court in original civil jurisdiction.

(1) The following provisions shall not apply to the High Court in the exercise of its I original civil jurisdiction, namely, sections 16,17 and 20.

1[***]

1. Sub-section (2) rep. by Act 3 of 1909, sec. 127 and Sch. III.

121. Effect of rules in First Schedule.

The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.

122. Power of certain High Courts to make rules.

1[High Courts 2[not being the Court of a Judicial Commissioner]] 3[***] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may be such rules annul, alter or add to all or any of the rules in the First Schedule.

1. Subs. A.O. 1950, for “Courts which are High Courts for the purposes of the Government of India Act, 1935”.
2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, “for Part A States and Part B States”. Earlier the words “for Part A States and Part B States” were inserted by Act 2 of 1951, sec. 15 (w.e.f. 1-4-1951).
3. The words “and the Chief Court of Lower Burma”, rep. by Act 11 of 1923, sec. 3 and sch. II.

123. Constitution of Rule Committees in certain States.

(1) A committee to be called the Rule Committee, shall be constituted at

1[the town which is the usual place of sitting of each of the High Courts

2[***] referred to in section 122].

(2) Each such Committee shall consist of the following persons, namely-

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 3[***] a Divisional Judge for three years,

4[(b) two legal practitioners enrolled in that Court]

5[(c)] a Judge of a Civil Court subordinate to the High Court 6[***]

5[7[* * *]]

(3) The members of each such Committee shall be appointed by the

8[High Court], which shall also nominate one of their number to be

President:

9[* * *]

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the 8[High Court] in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the State in which the Committee was constituted or becomes incapable of acting as a member of the Committee, the said 8[High Court] may appoint another person to be a member in his stead.

(5) There shall be a secretary to each such Committee who shall be appointed by the 9[High Court] and shall receive such remuneration as may be provided in this behalf 10[by the State Government].

STATE AMENDMENTS

Assam and Nagaland-Substitute the following for clause (a) sub-section (2) of section 123.

“(a) three judges of the High Court established at the town at which such committee is constituted, provided that the Chief Justice may appoint only two judges of the High Court on the Committee if the number of Judges of the High Court does not exceed three”

[C.P.C. (Assam Amendment) Act No. 8 of 1953, sec. 2, (w.e.f. 18-4-1953) and Nagaland Act 27 of 1962 (w.e.f. 1-12-1963).]

Tamil Nadu-In section 123 sub-section (2).

(a) “In clause (b) for the words ‘two legal practitioners’ substitute the words ‘three legal practitioners’.”

(b) “Omit the words ‘Madras’ in clause (d)”.

[Vide Tamil Nadu Act No. 15 of 1970, sec. 2 (w.e.f. 10-6-1970).]

1. Subs. by Act 13 of 1916, sec. 2 and Sch. for “each of towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”.
2. The words “and of the Chief Court”, Omitted by Act 11 of 1923, sec. 3 and Sch. II. These words were again ins. By Act 32 of 1925, and subsequently omitted by A.O. 1948.
3. The brackets and words “(in Burma)” rep. by Act 11 of 1923, sec. 3 and Sch. II.
4. Subs. by Act 2 of 1951 sec. 16, for clauses (b) and (c).
5. Clauses (d) and (e) re-lettered as clauses (c) and (d) respectively by Act 2 of 1951, sec. 16 (w.e.f. 1-4-1961).
6. The word “and” omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
7. Cl. (d) omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
8. Subs, by Act No. 104 of 1976, sec. 44, for “Chief Justice or Chief Judge” (w.e.f. 1-2-1977).
9. Proviso omitted by Act No. 104 of 1976, sec. 44 (w.e.f. 1-2-1977).
10. Subs. by A.O. 1937, for “by the G.G. in C. or by the L.G. as the case may be”.

124. Committee to report to High Court.

Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

125. Power of other High Courts to make rules.

High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions 1[as 2[the State Government] may determine]:

Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court.

1. Subs. by Act 38 of 1920, sec. 2 and Sch. 1, Pt. I, for “as the G.G. in C. may determine”.
2. Subs. by the A.O. 1937, for “in the case of the Court of the Judicial Commissioner of Coorg, the G.G. in C., and in other cases the L.G.”.

126. Rules to be subject to approval.

1[126. Rules to be subject to approval.

Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of 2[Central Government].]

—————

1. Subs. by the A.O. 1937, for section 126.

2. Subs. by the A.O. 1950, for “Governor General”.

127. Publication of rules.

Rules so made and 1[approved] shall be published in the 2[Official Gazette] and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.

1. Subs. by Act 24 of 1917, sec. 2 and Sch. 1, for “sanctioned”.
2. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant.

128. Matters for which rules may provide.

(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely :-

(a) the service of summons, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property and the proceeds of such sale;

(c) procedure in suits by way of counterclaim and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging order either in addition to, or in substitution for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

on a contract express or implied; or

on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or

on trust; or

(ii) in suits for the recovery of immovable property, with or without claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for nonpayment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or Master or other official of

the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.

129. Power of High Court to make rules as to their original Civil Procedure.

Notwithstanding anything in this Code, any High Court 1[not being the Court of a Judicial Commissioner] may make such rules not inconsistent with the Letters Patent 2[or order] 3[or other law] establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

Comments

Rules regulating procedure of High Court on its original side need not be consistent with provisions of the Code of Civil Procedure, 1908; Tridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514.

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “for a Part a State or a Part B State”.
2. Ins. By the A.O. 1950.
3. Ins. By Act 2 of 1951, sec. 17 (w.e.f. 1-4-1951).

130. Powers of other High Court to make rules as to matters other than procedure.

1[130. Powers of other High Court to make rules as to matters other than procedure.

A High Court 2[not being a High Court to which section 129 applies] may, with the previous approval of the State Government make with respect to any matter other than procedure any rule which a High Court 3[for a 4[***] State] might under 5[article 227 of the Constitution] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency town.]

1. Subs. by the A.O. 1937, for section 130.2. Subs. by the A.O. 1950, for “not constituted by His Majesty by Letters Patent”.3. Subs. by the A.O. 1950, for “so constituted”.4. The word and letter “Part A” omitted by the Adaptation of Laws (No. 2) Order, 1956.5. Subs. by the A.O. 1950, for “section 224 of the Government of India Act, 1935”.

131. Publication of rules.

Rules made in accordance with section 129 or section 130 shall be published in the 1[Official Gazette] and shall from the date of publication or from such other date as may be specified have the force of law.

1. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant..

132. Exemption of certain women from personal appearance.

(1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

133. Exemption of other persons.

1[(1) The following persons shall be entitled to exemption from personal appearance in Court, namely-

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Speaker of the House of the People;

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

(vi) the Governors of States and the administrators of Union Territories;

(vii) the Speakers of the State Legislative Assemblies/

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts; and

(xi) the persons to whom section 87B applies.]

2[***]

(3) Where any person 3[***] claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

1. Subs. by Act No. 66 of 1956, sec. 12, for sub-section (1) (w.e.f. 1-1-1957).
2. Sub-section (2) omitted by Act No. 66 of 1956, sec. 12 (w.e.f. 1-1-1957).
3. The words “so exempted” omitted by Act 66 of 1956, sec. 12 (w.e.f. 1-1-1957).

134. Arrest other than in execution of decree.

The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.

135. Exemption from arrest under civil process.

(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleader, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to person in execution of a decree.

135A. Exemption of members of legislative bodies from arrest and detention under civil process.

1[135A. Exemption of members of legislative bodies from arrest and detention under civil process.

2[(1) No person shall be liable to arrest or detention in prison under civil process-

(a) if he is a member of-

(i) either House of Parliament, or

(ii) the legislative Assembly or Legislative Council of a State, or

(iii) a Legislative Assembly of a Union territory,

during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

(b) if he is a member of any committee of-

(i) either House of Parliament, or

(ii) the Legislative Assembly of a State or Union territory, or

(iii) the Legislative Council of a State,

during the continuance of any meeting of such committee;

(c) if he is a member of-

(i) either House of Parliament, or

(ii) a Legislative Assembly or Legislative Council of a State having both such Houses,

during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.]

(2) A person released from detention under sub-section (1), shall, subject the provisions, of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).]

1. Ins. by Act 23 of 1925, sec. 3.
2. Subs. by Act No. 104 of 1976, sec. 45 for sub-section (1) (w.e.f. 1-2-1977).

136. Procedure where person to be arrested or property to be attached is outside district.

(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District

Court within the local limits of whose jurisdiction such person or property reside or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the later Court, or unless he furnishes sufficient security for his appearance before the later Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

(4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil ju

59. Stay of sale

Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may-

(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or

(b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.]

[Rule 60 to 63-Omitted by Act No. 104 of 1976.]

HIGH COURT AMENDMENTS

Calcutta.-In Order XXI, after rule 63, insert the following rule, namely:-

“63A. When an attachment of movable property ceases, the Court may order the restoration of the attachment property to the person in whose possession it was before the attachment.” (w.e.f. 3-11-1933)

Gauhati.-Same as in Calcutta,

Patna.-In Order XXI, after rule 63, insert the following heading and rules, namely:-

“Garnishee Orders

63A. Where a debt {other than a debt secured by a mortgagor a debt recoverable only in Revenue Court or a debt the amount of which exceeds the pecuniary jurisdiction of the Court) has been attached under rule 46 and the debtor prohibited under clause (i) of sub-rule (1) of rule 46 (hereinafter called the garnishee) does not pay the amount of the debt into Court in accordance with rule 46, sub-rule (3), the Court, on the application of the decree-holder, may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless otherwise ordered by the Court, be served on the judgment-debtor.

63B. (1) If the garnishee does not pay into Court the amount of the debt due from him to judgment-debtor, and if he does not appear in answer to the notice issued under rule 63A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice, and on such order execution may issue against the garnishee as though such order were a decree against him.

(2) If the garnishee appears in answer to the notice issued under rule 63A, and disputes his liability to pay the debt attached, the Court, instead of making an order as aforesaid, may order that any issue or question necessary for determining his liability be tried as though it were an issue in a suit and **** upon the determination of such issue shall pass such order upon the notice as shall be just.

63C. Whenever in any proceedings under the foregoing rules it is alleged by the garnishee that the debt attached belongs to some third person, or that any third person has a lien or charge upon or interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, upon such debt, and prove the same, if necessary.

63D. After hearing such third person and any other person who may subsequently to be ordered to appear, or in the case of such third or other person not appearing as ordered, the Court may pass such order as is provided in the foregoing rules, or make such other order as the Court shall think fit, upon such terms in all cases with respect to the lien charge or interest, if any, of such third or other person as shall seem just and reasonable.

63E. Payment made by, or levied by execution upon the garnishee in accordance with any order made under these rules shall be a valid discharge to him as against the judgment-debtor, and any other person ordered to appear under these rules, for the amount paid or levied although such order or the judgment may be set aside or reversed.

63F. The costs of any application for the attachment of a debt under the foregoing rules and of any proceedings arising from or incidental to such application shall be in the discretion of the Court. Costs awarded to the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order and in priority to the amount of his decree.

63G. Out of the amount recovered under the garnishee order the Court shall deduct a sum equal to the court-fee payable under the Indian Court-Fees Act on a plaint in a suit for recovery of the money and credit the same to the Government.

63H. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same condition as to appeals or otherwise as if were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.”

Sale genrally

64. Power to order property attached to be sold and proceeds to be paid to person entitled

Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

HIGH COURT AMENDMENTS

Madras–In Order XXI, in rule 64, after the words “executing a decree may”, insert the words “after notice to the decree-holder and judgment-debtor”, (w.e.f. 10-4-1963)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 64,-

(a) for the words “attached by it”, substitute the words “in respect of which it has made an order of attachment”.

(b) between the words “and” and “liable”, insert the words “which is” (w.e.f. 7-1-1936).

65. Sales by whom conducted and how made

Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya Pradesh.

Kerala.-Same as in Madhya Pradesh.

Madhya Pradesh.-In Order XXI, in rule 65, at the end, insert the following words:-

“Such officer or person shall be competent to declare the highest bidder as purchaser at the sale, provided that, where the sale is made in, or within the precincts of the Court-house, no such declaration shall be made without the leave of the Court.” (w.e.f. 16-9-1960)

66. Proclamation of sales by public auction

(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2) Such proclamation shall be draw up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-

(a) the property to be sold 1[or, where a part of the property would be sufficient to satisfy the decree, such part];

(b) the revenue assessed upon the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:

1[Provided that where notice of the date for settling the terms of the proclamatioin has been given to the judgement-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties.]

(3) Every application for an order for sale under this rule shall be accompaniec by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation the Court may summon any person whom it thinks necessary to summon and ma> examine him in respect to any such matters and require him to produce any documeni in his possession or power relating thereto.

HIGH COURT AMENDMENTS

Andhra Pradesh and Kerala.-In Order XXI, in rule 66,-

(i) Same as in of Madras.

(ii) reletter clause (e) as clause (f) and insert to following clause, namely;-

“(e) the value of the property as stated (i) by the decree-holder and {ii} by the judgment-debtor;” (w.e.f. 13-10-1936)

(iii) in sub-rule (1), for the words “made”, substitute “drawn up.” (w.e.f. 12-11-1952)

Calcutta and Gauhati.-In Order XXI, in rule 66, in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property but the proclamation shall include the estimate if any given by either or both the parties.”

Delhi and Himachal Pradesh.-In Order XXI, in rule 66, after sub-rule (2),-

(i) insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clause (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the Code of Civil Procedure.”

(ii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

Karnataka.-

In Order XXI, in rule 66, in sub-rule (2),-

(i) re-number clause (e) as clause (f) and insert the following clause, namely:-

“(e) The value of the property as stated by the decree-holder and the value of the property as stated by the judgment-debtor;”

(ii) in clause (d), omit the word “and”, (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXI, in rule 66, in sub-rule (2), at the end, insert the words “including the decere-holder’s estimate of the approximate market price.” (w.e.f. 16-9-1960)

Madras.-In Order XXI, in rule 66,-

(i) in sub-rule (1), for the word “made”, substitute the words “drawn up”;

(ii) for sub-rule (2), substitute in the following sub-rule, namely:-

“(2) The term of such proclamation shall be settled in Court after notice to the decree-holder and judgment-debtor except in cases where notices have already been served under Order XXI, rule 64 and such proclamation shall state the time and place of sale and specify as accurately possible-

(a) the property to be sold,

(b) the revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government,

(c) any incumbrance to which the property is liable,

(d) the amount for the recovery of which the sale is ordered,

(e) the value of the property as stated (i) by the D.H. and (ii) by the J.D.,

(f) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.” (w.e.f. 5-9-1968)

Patna.-In Order XXI, in rule 66, in sub-rule (2),-

(i) omit the words “shall be drawn up after notice to the decree-holder and the judgment-debtor and”;

(ii) after clause (e), insert the following proviso, namely:-

“Provided that no estimate of the value of the property other then those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does vouch for the accuracy of either shall be inserted in sate proclamation.”

Punjab, Haryana And Chandigarh.-In Order XXI, in rule 66,-

(i) in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate -of the value of the property; but proclamation shall include the estimate, if any, given by either or both of the parties.”

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clauses (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the C.P. Code.”

(iii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

67. Mode of making proclamation

(1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).

(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka-In Order XXI, in rule 67, after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court so directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 67,-

(a) (i) for the Marginal heading, substitute the following marginal heading, namely:-

“Mode of publishing the proclamation of sale”;

(iii) in sub-rule (3), for the words “to make a separate proclamation for each lot”, substitute the words “to publish the proclamation of same separately for each lot”.

(b) after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (1), at the end, omit the full stop and add the following words, namely:-

“and may, if the Court so directs, on the application of the decree-holder, be proclaimed and published simultaneously with the order of attachment.”

68. Time of sale

Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least 1[fifteen days] in the case of immovable property, and of at least 2[seven days] in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.

1. Subs. by Act. No. 104 of 1976, Sec 72 for “thirty days” (w.e.f. 1-2-1977).

2. Subs. by Act. No. 104 of 1976, Sec. 72 for “fifteen days” (w.e.f. 1-2-1977).

69. Adjournment or stoppage of sale

(1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:

Provided that, where the sale is made in, or within the precincts of, the court-house, no such adjournment shall be made without the leave of the Court.

(2) Where a sale is adjourned under sub-rule (1) or a longer period than 1[thirty] days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 69, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale has been once adjourned under sub-rule (1), a fresh proclamation under rule 67 shall be made, under the judgment-debtor consents to wave it:

Provided that where the adjournment is for a period not longer than [thirty] days from the date originally fixed for sale, no fresh proclamation shall be necessary:

Provided also that the Court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under rule 66.”

Andhra Pradesh.-In Order XXI, in rule 67, in sub-rule (2), for the words “a fresh proclamation under rule 67 shall be made”, substitute the words “there shall be a fresh publication of the proclamation in the manner prescribed by rule 67”.

Bombay.-In Order XXI, in rule 67, in sub-rule (1), after the words “adjourn the sale”, insert the words “to specified day and hour”.

Karnataka.-Same as in Andhra Pradesh only adding the words “of sale” after “proclamation”, (w.e.f. 30-3-1967)

Kerala.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that no such fresh proclamation shall be necessary in cases where the sale has been adjourned on account of the absence of Presiding Judge or on account of the day fixed for sale being declared a holiday.” (w.e.f. 10-3-1964)

Madras.-In Order XXI, in rule 67, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by rule 67, unless the judgment-debtor consents to waive it, or the Court otherwise orders.” (w.e.f. 5-9-1968)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that the Court may dispense with the consent of any judgment-debtor who has not appeared in the proceedings.”

1. Subs, by Act. No. 104 of 1976, Sec. 72 for “seven” (w.e.f. 1-2-1977).

70. [Saving of certain sales.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14 (w.e.f. 1-1-1957).

71. Defaulting purchaser answerable for loss on re-sale

Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the Court by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

72. Decree holder not to bid for or buy property without permission

(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2) Where decree-holder purchases, amount of decree may be taken as payment-Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree small enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 72,-

(a) omit sub-rules (1) and (3);

(b) re-number sub-rule (2) as sub-rule (1);

(c) in sub-rule (1) as so renumbered, for the words “with such permission”, substitute the words “the property sold”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

Patna.-In Order XXI, in rule 72,- (a) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) No holder of a decree in execution of which property is sold shall be ‘, precluded from bidding for or purchasing the property unless on express order to that effect is made by the Court.”

(b) in sub-rule (2), for the words “with such permission”, substitute the words “the property”.

(c) for sub-rule (3), substitute the following sub-rule, namely:-

“(3) Where notwithstanding an order made under sub-rule (1) a decree-holder purchases the property by himself or through another person the Court shall, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the cost of such application and order and any deficiency of price which may happen on the re-sale and all expenses attending it shall be in the discretion of the Court.”

1[72A. Mortgagee not to bid at sale without the leave of the Court

(1) Notwithstanding anything contained in rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.

(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall be-

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot; and

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the decree-holder under that rule.]

1. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

73. Restriction on bidding or purchase by officers.

No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Sale of movable property

74. Sale of agricultural produce

(1) Where the property to be sold is agricultural produce, the sale shall be held,-

(a) if such produce is a growing crop, on or near the land on which such crop has grown, or

(b) if such produce has been cut or gathered, at or near the threshing floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where, on the produce being put up for sale,-

(a) a fair price, in the estimation of the person holding the sale, is not offered for it, and

(b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till next day or, if a market is held at the place of salej the next market-day,

the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.

75. Special provisions relating to growing crops.

(1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2) Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting or gathering it.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words, “or, where it appears-‘to the Court that the crop [shall] be sold to greater advantage in an unripe state”.

Calcutta.-In Order XXI, in rule 75, in sub-rule (2),-

(a) after the words “Where the crop from its nature does not admit of being stored”, insert the words “or can be sold to greater advantage in an unripe state (e.g. as green wheat)”,

(b) between the words “tending” and “cutting” for the word “and” substitute the word “or”.

[Vide Notification No. 3615-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, unless the Court decides to proceed under the provisions of sub-rule (2) of this rule, the day of sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is stored.

(2) Where the crop from its nature does not admit of being stored or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state, and the purchaser shall be entitled to enter on the land and do all that is necessary for the purpose of tending and cutting or gathering the said crop.” (30-3-1967)

Kerala.-Same as in Madras

[Vide Notification No. 81-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words “or, where it appears to the Court that the crop can be sold to greater advantage in an unripe state”, (w.e.f. 16-9-1960) Madras.-In Order XXI, in rule 75,-

(a) in sub-rule (1), after the words “yet been stored”, insert the words “unless the Court decides to proceed under the provisions of sub-rule (2) hereunder”,

(b) in sub-rule (2) after the words “being stored”, insert the words “or can be sold to greater advantage in an unripe state” and after the words “and gathered”, insert the words “or in such unripe state”, (w.e.f. 9-6-1959}

Patna.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. Where the property to be sold is a growing crop which can be sold to greater advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser shall be entitled to enter on the land to do all that is necessary for the purpose of tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of the crop ripening and reaped before the sale.”

[Vide Notification No. 1-R, dated 7th January, 1936.]

Punjab.-In Order XXI, in rule 75, in sub-rule (2), after the word “stored”, insert the words “or can be sold to greater advantage in an unripe state”.

[Vide Notification No. 2212-G, dated 12th May, 1909 and Notification No. 123-R/XI-Y-14, dated 28th April, 1938.]

76. Negotiable instruments and shares in corporations

Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker.

77. Sale by public auction

(1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of pay ment the property shall forthwith be re-sold.

(2) On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

78. Irregularity not to vitiate sale, but any person injured may sue

No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.

79. Delivery of movable property, debts and shares

(1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2) Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, of prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

80. Transfer of negotiable instruments and shares.

(1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the Judge or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2) Such execution or endorsement may be in the following form, namely:-

A.B. by C.D. Judge of the Court of (or as the case may be), in a suit by E.F. against AS.

(3) Until the transfer of such negotiable instrument or share, the Court may, by order appoint some person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

ORDER XXI (81-106). EXECUTION OF DECREES AND ORDERS

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

81. Vesting order in case of other property.

In the case of any movable property not hereinbefore provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

Sale of immovable property

82. What Courts may order sales.

Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

HIGH COURT AMENDMENT

Kerala.-In Order XXI, in rule 82, for the words “of Small Causes”, substitute the words “exercising small cause jurisdiction”. (w.e.f. 9-6-1959).

83. Postponement of sale to enable judgment-debtor to raise amount of decree.

(1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale:

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

84. Deposit by purchaser and re-sale on default.

(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, in rule 84, in sub-rule (2), at the end, insert the following words, namely:-

“The court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets.”

[Vide Notification No. 16699-H, dated 17th January, 1953.]

85. Time for payment in full of purchase-money.

The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:

Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 85,-

(i) after the words “purchase-money payable”, insert the words “together with the amount required for general stamp paper for certificate under rule 94”.

(ii) for the proviso, substitute the following provisos and Explanation, namely:-

“Provided that, in Respect of the purchase money, the purchaser shall have the advantage of any set-joff to which he may be entitled under rule 72:

Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited fails short of the full amount of the purchase-money, the Court may in its discretion allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

Explanation.-When an amount is tendered in Court on any day after 1 p.m. but not accepted by the Court and is paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.” (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, after rule 85, insert the following rule, namely:-

“85A. Set-off where execution has been transferred to Collector.-In cases where execution has been transferred to the Collector, for the purposes of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule 72 if he produces a certificate to that effect from the Court executing the decree.” (w.e.f. 17-8-1961)

Kerala.-In Order XXI, in rule 85,- ”

(i) after the words “purchase-money payable”, insert the words “together with the amount required for the general stamp paper for the certificate under rule 94”.

(ii) in the proviso, for the words “in calculating the amount to be so paid into Court”, substitute the words “in respect of the purchase-money”, (w.e.f. 1-1-1966)

Madhya Pradesh.-In Order XXI, in rule 85, insert the following Explanation, namely:-

“Explanation.-When an amount is tendered on any day after 1 p.m. but paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXI, for rule 85, substitute the following rule, namely:-

“85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:

Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.”

[Vide P. Dis. No. 677, dated 25th November, 1944.]

86. Procedure in default of payment

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

87. Notification on re-sale

Every re-sale of immovable, property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 87, for the words “of the purchase-money”, substitute the words “of the amount mentioned in rule 85”.

[Vide Maharashtra Gazette, Ft. IV-C, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXI, in rule 87, for the words “payment of the purchase-money” substitute the words “the payment of the amounts mentioned in rule 85”.

[Vide GOMs No. 2922-Home, dated 28th October, 1936-HCP Dis No. 690 of 1936.]

88. Bid of co-sharer to have preference

Where the property sold is a share of undivided immovable property and two or more persons, or whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

89. Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a degree, 1[any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his deposition in Court,-

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 89, in sub-rule (1), insert the following proviso, namely:- “Provided that if the full amount required to be deposited in Court under this rule is not deposited at the time of making the application through some bona fide mistake or miscalculation and the short-fall is made up within one week from the date of the discovery of the mistake or calculation, the Court may condone the delay, if it considers it just and proper to do so.” (w.e.f. 1-11-1966)

Karnataka.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “such proclamation of sale, have been received by the decree-holder”, substitute the words “that proclamation of sale, have been paid or deposited towards satisfaction of the decree”. (ii) insert the proviso as in Madras.

Kerala.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “date of such proclamation”, substitute the words “date of the proclamation”;

(ii) insert the following provisos, namely:-

“Provided that, when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent, of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered still remains unrealised:

Provided further that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.” (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 89, in sub-rule (1),-

”(i) in clause (b) for the words “date of such proclamation”, substitute the words “date of that proclamation”,

(ii) insert the following proviso, namely:-

“Provided that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay”

[Vide GOMs 2084 Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936].

1[90. Application to set aside sale on ground of irregularity or fraud

(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conduction it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishir or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon an ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.-There mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]

1. Subs, by Act No. 104 of 1976, sec. 72 for rule 90 (w.e.f. 1-2-1977).

91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.

The purchaser at any such sale in execution of decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

HIGH COURT AMENDMENT

Gujarat-In Order XXI, after rule 91, insert the following rule, namely:-

“91A. Deposits how to be made., where execution is transferred to Collector.-Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, an application under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the State Government under section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of rules 89, 90 and 91.” (w.e.f. 17-8-1961)

92. Sale when to become absolute or be set aside.

(1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:

1[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 2[sixty days] from the date of sale, 3[or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

4[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

5[(4) Where a third party challenges the judgment-debtor’s title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered.]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 4084/35(a}-3(7), dated 24th July, 1926.]

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, in rule 92,-

(i) in sub-rule (1), insert the following proviso, namely:-

“Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in rule 86, give the purchaser such times as it thinks fit for making good any deficiency.” (w.e.f. 1-10-1983) (ii) in sub-rule (2), insert words as in Madras by only substituting the words “has become deficient” for the words “has been diminished”.

[Vide Notification No. Bl-3312-58, dated 7th April, 1959.]

Kerala.-In Order XXI, in rule 92, in sub-rule (2),–

(i) for the words “thirty days”, substitute the words “sixty days”, (w.e.f. 9-2-1988)

[Ed.-This amendment relates to sub-rule (2) prior to its amendment made by the Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

(ii) after the words “from sale”, insert the words “and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court”.

Madhya Pradesh.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 3409, dated 29th June, 1943,]

Madras.-In Order XXI, in rule 92, in sub-rule (2), after the words “within thirty days from the date of sale” insert the following words:-

“and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court.”

[Ed.-This amendment relates to sub-rule (2) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977} and Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

Patna.-Same as in Allahabad.

1. Added by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

2. Substituted for ‘thirty days’ by Act No. 22 of 2002, section 14 (w.e.f. 1-7-2002).

3. Subs, by Act No. 104 of 1976, sec. 72 for “the Court shall make an order setting aside the sale” (w.e.f. 1-2-1977).

4. Inserted by Act No. 22 of 2002, section 14 (w.e.f. 1 -7-2002).

5 Ins by Act No. 104 of 1976, sec. 72 (w.e..f. 1-2-1977).

93. Return of purchase-money in certain cases.

Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

94. Certificate to purchaser.

Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI,-

(i) renumber rule 94 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert following sub-rule, namely:-

“(2) Where immovable property is transferred otherwise than by sale, a document of transfer shall be granted by the Court specifying the property, the name of the person to whom it is transferred and the terms on which the transfer is made. Such document shall bear the date the day on which the transfer was ordered.” (w.e.f. 13-2-1960)

Bombay.-In Order XXI, in rule 94, between the words “sold” and “and”, insert a comma and the words “the amount of the purchase-money”, (w.e.f. 1-10-1983)

Madhya Pradesh.-Same as in Bombay, (w.e.f. 16-9-1960)

Orissa.-Same as in Patna.

Patna.-In Order XXI, for rule 94, substitute the following rule, namely:-

“94. Certificate to purchaser.-Where a sale of immovable property has become absolute the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be purchaser. Such certificate shall bear the date the day on which the sale becomes absolute. If the necessary stamp for sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside.”

95. Delivery of property in occupancy of judgment-debtor

Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

HIGH COURT AMENDMENT

Madras.-In Order XXI,-

(i) renumber rule 95 as sub-rule (1) thereof;

(ii) after sub-rule (1) as to renumbered, insert the following sub-rule, namely:-

“(2) Where delivery of possession of a house is to be given and it is found to be locked’ orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the purchaser.

If it is found at the time of delivery, that there are movables, in the house to which the purchaser has no claim and the judgment-debtor is absent or, if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the purchaser after taking a bond from him for keeping the articles in custody pending orders of Court for disposal of the same.

The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.

The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movables within thirty days from the date of the notice, and in default will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:

Provided that, if movable articles referred to above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such case call upon him to receive the amount from Court within three months.” (w.e.f. 17-8-1966)

96. Delivery of property in occupancy of tenant

Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, after rule 96, insert the following rule namely:-

“96A. (1) The Court executing a decree may of its own motion or on application and on such terms as may appear to it just and reasonable in the circumstances of the case as are acceptable to the transferee, order that any property of the judgment-debtor attached by it, be transferred otherwise by sale in favour of the decree-holder or any other person not a party to the decree, for the purpose of satisfying the decree or portion thereof.

(2) The provisions of rules 64 to 103 of this order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation.” (w.e.f. 13-2-1960)

Resistance to delivery of possession to decree- holder or purchaser

97. Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

1[(2) Where ?ny application is made under sub-rule (1), the Court shall proceed to adjudicate upon ihe application in accordance with the provisions herein con-tained.]

1. Subs. by Act No. 104 of 1976, sec. 72 for sub-rule (2) (w.e.f. 1-2-1977).

1[98. Orders after adjudication.

(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in-rule 98, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor on by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise at if it were a decree.” [Vide Maharashtra Government Gazette, Pt. IV, ka, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).]

1. Subs,. by Act No. 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977).

1[99. Dispossession by decree-holder or purchaser

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sol in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudical upon the application in accordance with the provisions herein contained.]

1. Subs. by Act 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977)

100. Order to be passed upon application complaining of dispossession

Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-

(a) make an order allowing the application and directing that the applicant be pi into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 100, insert the following proviso, namely:-

“Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.” (w.e.f. 1-10-1983)

101. Questions to be determined

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 101, insert the following proviso, namely:-

“Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to “Which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.” (w.e.f. 1-10-1983)

102. Rules not applicable to transferee pendent life

Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation-In this rule, “transfer” includes a transfer by operation of law.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, omit rule 102.

103. Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

1[104. Order under rule 101 or rule 103 to be subject to the result or pending suit

Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[105. Hearing of application

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex pane and pass such order as it thinks fit.

Explanation.-An application referred to in sub-rule (1) includes a claim or objection made under rule 58.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[106. Setting aside order passed ex parte, etc.

(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed exparte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex pane order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, after rule 106, insert the following rules, namely:-

“106A. When the certificate prescribed by section 41 is received by the Court which sent the decree for execution, it shall cause the necessary details as to the result of execution to be entered in its register of civil suits before the papers are transmitted to the record room.

106B. Every attachment of movable property under rule 43, of the Negotiable Instruments under rule 51 and of immovable property under rule 54, shall be made through a Civil Court Amin, or bailiff, unless special reasons render it necessary that any other agency should be employed; in which case those reasons shall be stated in the handwriting of the presiding Judge himself in the order for attachment.

106C. When the property which it is sought to bring to sale is immovable property within the definition of the same contained in law for the time being in force relating to the registration of documents, the decree-holder shall file with his application for an order for sale a certificate from the Sub-Registrar within whose sub-district such property is situated, showing that the Sub-Registrar has searched his books Nos. I and II and their indices for twelve years preceding the mortgage or attachment as the case may be and stating the encumbrances, if any, which he has found on the property.

107. When an application is made for the sale of land or of any interest in land, the Court shall, before ordering sale thereof, call upon the parties to state whether such land is or is not ancestral land within the Notification No. 1887/1-238-10, dated 7th October, 1911, of Local Government, and shall fix a date for determining the said question.

On the day so fixed, or on any date to which the enquiry may have been adjourned, the Court may take such evidence, by affidavit or otherwise, as it may deem necessary, and may also call for a report from the Collector of the district as to whether such land or any portion thereof is ancestral land.

After considering the evidence and the report, if any, the Court shall determine whether such land, or any, and what part of it, is ancestral land.

The result of the enquiry shall be noted in an order made for the purpose by the presiding Judge in his own handwriting.

108. When the property which it is sought to bring to sale is revenue-paying or revenue-free land or any interest in such land, and the decree is not sent to the Collector for execution under section 68, the Court, before ordering sale, shall also call upon the Collector in whose district such property is situate to report whether the property is subject to any (and, if so, to what) outstanding claims on the part of Government.

109. The certificate of the Sub-Registrar and the report of the Collector shall be open to the inspection of the parties of their pleaders, free of charge, between the time of the receipt by the Court and the declaration of the result of the enquiry. No fees are payable in respect of the report by Collector.

110. The result of the enquiry under rule 66 shall be noted in an order made for the purpose by the presiding Judge in his own handwriting. The Court may, in its discretion, adjourn the enquiry, provided that the reasons for the adjournment are stated in writing, and that no more adjournments are made than are necessary for the purposes of the enquiry.

111. If after proclamation of the intended sale has been made any matter is brought to the notice ef the Court which it considers material for purchasers to know, the Court shall cause the same to be notified to intending purchasers when the property is put up for sale.

112. The costs of the proceedings under rules 66,106 and 108 shall be paid in the first instance by the decree-holder; but they shall be charged as part of the costs of the execution, unless the Court, for reasons to be specified in writing, shall consider that they shall either wholly or in part be omitted therefrom.

113. Whenever any Civil Court has sold, in execution of a decree or other order, any house or other building situated within the limits of a military cantonment or station, it shall, as soon as the sale has been confirmed, forward to the commanding officer of such cantonment or station for his information and for record in the Brigade or other proper office, a written notice that such sale has taken place; and such notice shall contain full particulars of the property sold and the name and address of the purchaser.

114. Whenever guns or other arms in respect of which licences have to be taken by purchasers under the Arms Act, 1959 are sold by public auction in execution of decree by order of a Civil Court, the Court directing the State shall give due notice to the Magistrate of the district of the names and addresses of the purchasers, and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken by the police to enforce the requirements of the Arms Act.

115. When an application is made for the attachment of live-stock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for fifteen days. If within three clear days before the expiry of any such period of fifteen days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

116. Live-stock which has been attached in execution of a decree shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that of some land-holder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court.

117. If the custody of live-stock cannot be provided for in the manner described in the last preceding rule, the animals attached shall be removed to the nearest pound established under the Cattle Trespass Act, 1871 (1 of 1871), and committed to the custody of the pound-keeper, who shall enter in a register-

(a) the number and description of the animals;

(b) the day and hour on and at which they were committed to his custody;

(c) the name of the attaching officer or his subordinate by whom they were committed to his custody; and shall give such attaching officer or subordinate a copy of the entry.

118. For every animal committed to the custody of the pound-keeper as aforesaid, a charge shall be levied as rent for the use of the pound for each fifteen or part of fifteen days during which such custody continues; according to the scale prescribed under section 12 of Act No. I of 1871.

And the sums so levied shall be credited to the Municipal Board or the Zilla Parishad or the Notified Area, as the case may be, under whose jurisdiction the pound is.

119. The pound-keeper shall take charge of, feed and water, animals attached and committed as aforesaid until they are withdrawn from his custody as hereinafter provided a,nd he shall be entitled to be paid for their maintenance at such rates as may be, from time to time, prescribed under proper authority. Such rates shall, for animals specified in the section mentioned in the last preceding rule, not exceed the rates for the time being fixed under section 5 of the same Act. In any case, for special reasons to be recorded in writing, the Court may require payment to be made for maintenance at higher rates than those prescribed.

120. The charges herein authorized for the maintenance of live-stock shall be paid to the pound-keeper by the attaching officer for the first fifteen days at the time the animals are committed to his custody, and thereafter for such further period as the Court may direct, at the commencement of such period. Payments for such maintenance so made in excess of the sum due for the number of days during which the animals may be in the custody of he pound-keeper shall be refunded by him to the attaching of officer.

121. Animals attached and committed as aforesaid shall not be released from custody by the pound-keeper except on the written order of the Court, or of the attaching officer, or of the officer appointed to conduct the sale; the person receiving the animals, on their being so released, shall sign a receipt for them in the register mentioned in rule 117.

122. For the safe custody of movable property other than live-stock while under attachment, the attaching officer shall, subject to approval by the Court, make such arrangements as may be most convenient and economical.

123. With the permission of the Court the attaching officer may place one or more person in special charge of such property.

124. The fee for the services of each such person shall be payable in the manner prescribed in rule 115. It shall not be less than twenty-five naya paise, and shall ordinarily not be more than thirty-seven naya paise per diem. The Court may, at its discretion, allow a higher fee; but if it does so, it shall state in writing its reasons for allowing an exceptional rate.

125. When the services of such person are no longer required the attaching officer shall give him a certificate on a counterfoil form of the number of days he has served and of the amount due to him; and on the presentation of such certificate to the Court which ordered the attachment, the amount shall be paid to him in the presence of the Presiding Judge:

Provided that, where the amount does not exceed Rs. 5, it may be paid to the Sahna by money order on requisition by the Amin, and the presentation of the certificate may be dispensed with.

126. When in consequence of an order of attachment being withdrawn or for some other reason, the person has not been employed or has remained in charge of the property for a shorter time than that for which payment has been made in respect of his services, the fee paid shall be refunded in whole or in part, as the case may be.

127. Fees paid into Court under the foregoing rules shall be entered in the Register of Petty Receipts and Repayments.

128. When any sum levied under rule 118 is remitted as the Treasury, it shall be accompanied by an order in triplicate (in the form given as Form No. 9 of the Municipal Account Code), of which one part will be forwarded by the Treasury Officials to the Zilla Parishad or Municipal Board, as the case may be. A note’that the same has been paid into the Treasury as rent for the use of the pound, will be recorded on the extract from the pass book.

129. The cost of preparing attached property for sale, or of conveying it to the place where it is to be k^pt or sold, shall be payable by the decree-holder to the attaching officer. In the event of the decree-holder failing to provide the necessary funds, the attaching officer shall report his default to the Court, and the Court may thereupon issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

130. Nothing in these rules shall be deemed to prevent the Court from issuing and serving on the judgment-debtor simultaneously the notice required by Order XXI, rules 22, 66 and 107.

131. The Court may, in the case of any debt due to the judgment-debtor (other than a debt secured by a mortgage or a charge or a negotiable instrument, or a debt recoverable only in a Revenue Court), or any movable property not in the possession of the judgment-debtor, which has been attached under rule 46 of this Order issue a notice to any person (hereinafter called the garnishee) liable to pay such debt or to deliver or account for such movable property, calling upon him to appear before the Court and show cause why he should not pay or deliver into Court the debt due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and the cost of execution. (As amended on 29-3-1949).

132. If the garnishee does not forthwith or within such time as the Court may allow, pay or deliver into Court the amount due from or the property deliverable by him to the judgment-debtor, or so much as may be sufficient to satisfy the decree and the cost of execution, and does not dispute his liability to pay such debt or deliver such movable property, of if he does not appear in answer to the notice then the Court may order the garnishee to comply with the terms of such notice and on such order execution may issue as though such order were a decree against him.

133. If the garnishee disputes Ms liability the Court, instead of making such order, may order that any issue of question necessary for determining his liability be tried as though if were an issue in a suit; and upon the determination of such issue shall pass such order as shall be just. (As amended on 29-3-1949).

134. Whenever in any proceedings under these rules it is alleged, or appears to the Court to be probable that the debt or property attached belongs to some third person, or that any third person has a Hen or charge upon, or an interest in it, the Court may order such third person to appear and state the nature of his claim, if any, upon such debt or property and prove the same, if necessary. (As amended on 29-3-1949).

135. After hearing such third person, and any other person who may subsequently be ordered to appear, or in the use of such third or other person not appearing when ordered, the Court may pass such order as is hereinbefore provided or make such other order as it shall think fit, upon such terms in all cases with respect to the lien, charge or interest, if any, of such third or other person as to such Court shall seem just and reasonable.

136. Payment or delivery made by the garnishee whether in execution of an order under these rules or otherwise shall be a valid discharge to him as against the judgment-debtor or any other person ordered to appear as aforesaid, for the amount paid, delivered or realised although such order of the judgment may be set aside or reversed.

137. Debts owing from a firm carrying on business within the jurisdiction of the Court may be attached under these rules, although one or more members of such firm may be resident out of the jurisdiction: * Provided that any person having the control or management of the partnership.*? business or any member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

138. The costs of any application under these rules and of the proceedings arising therefrom or incidental thereto, or any order made thereon, shall be in the discretion of the Court.

139. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.

Illustration.-An application for a garnishee order is dismissed either on the ground that the debt is secured by a charge or that there is no prima facie evidence of debt due. This order is appealable as an order in execution. 140. All the rules in this Court relating to service upon either plaintiffs or defendants at the address filed or subsequently altered under Order VII or Order VIII shall apply to all proceedings taken under Order XXI or section 47.

The following form shall be used under the provisions of rule 131 of Order XXI: Suit No…………………………of……..

………………………………………………………………………………………….Plaintiff,

Versus

……………………………………………………………………………….. ..Defendant

Whereas it is alleged that a debt of Rs………………. is due from you to the judgment-debtor.

Or that you are liable to deliver to the above named judgment-debtor the property set forth in the Schedule hereto attached; Take notice that you are hereby required on or before the…………….day of…..19…./20….. to pay into this Court the said sum of Rs……………or………… to deliver account to the Amin of this Court for the moveable property detailed in the attached schedule or otherwise to appear in person or by advocate, vakil or authorised agent in this Court at 10.30 in the forenoon of the day aforesaid and show cause to the contrary in default whereon an order for the payment of the said sum, or for the delivery of the said property may be passed against you. Dated this…………day of………. of……l9…….:../20……….

Munsiff/Sub-Judge……………

at…………………”

Andhra Pradesh.-In Order XXI, insert rule 106 which is same as in Madras with the addition of the following words at the end:-

“For this purpose, the Court may make an order including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.”

[Vide Notification No. P Dis 229/56, dated 2nd April, 1959].

Madras.-In Order XXI, after rule 105, insert the following rule, namely:-

“106. Where and in so far as a decree or order is varied or reversed and the case does not fall within the scope of section 47 or section 144, the Court of first instance shall, on the application of any party affected by the decree or order, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order on such part thereof as has been varied or reversed.” (w.e.f. 19-5-1954)

[Ed.-This amendment relates to rule 106 prior to its amendment made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Calcutta.-After Order XXI, insert the following Order, namely:-

“ORDER XXIA”

1. Every person applying to a Civil Court to attach movable property shall, in addition to the process-fee, deposit such reasonable sum as the Court may direct if it thinks necessary, for the cost of its removal to the Court-house, for its custody, and, if such property is live-stock, for its maintenance according to the rates prescribed in rule 2 of this Order. If the deposit when ordered, be not made, the attachment shall not issue. The Court may, from time to time, order the deposit of such further fees as may be necessary. In default of due payment the property shall be released from attachment.

[See Rule 150, Civil Rules and Orders, (1959) Calcutta and Order XXIA, rule 16.]

2. The following daily rates shall be chargeable for the custody and maintenance of live-stock under attachment:-

Goat and pigAnnas 2 to annas 4.
SheepAnnas 2 to annas 3.
Cow and bullockAnnas 6 to annas 10.
CalfAnnas 3 to annas 6.
BuffaloAnnas 8 to annas 12.
HorseAnnas 8 to annas 12.
AssAnnas 3 to annas 5.
PoultryAnnas 2 to annas 3 pies 6.

Explanation.-Although the rates indicated above are regarded as reasonable, the Courts shall consider individual circumstances and the local conditions and permit deposit at reduced rates where the actual expenses are likely to fall short of the minima or maxima. If any specimen of special value in any of the above classes is seized a special rate may be fixed by the Court. If any animal not specified is attached, the Court may fix the cost as a special case.

3. When the property attached consists of agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, Order XXI, he may, unless the Court has otherwise directed, leave it in the village or place where it has been attached-

1[(a) in the charge of the decree-holder or his agent, or of the judgment-debtor, or of some other person, provided that the decree-holder or his agent or the judgment-debtor or other person, enters into bond in Form No. ISA of

Appendix E to this Schedule, with one or more sureties, to produce the attached property when called for and to be liable for any loss which the owner of the property attached may suffer due to wilful negligence of the bounden, or]

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of fifteen days paid in advance.

1. Rule 3(a) subs, by Notification No. 4440-G, dated 29th May, 1941.

4. If attached property (other than live-stock) is not sold, under the proviso to rule 43, Order 21, or retained in the village or place where it is attached, it shall be brought to the Court-house at the decree-holder’s expense and delivered to the proper officer of the Court. In the event of the decree-holder failing to make his own arrangement for the removal of the property with safety, or paying the cost thereof in advance to the attaching officer, then, unless such payment has previously been made into Court, the attachment shall at once be deemed to be withdrawn and the property shall be made over to the person in whose possession it was before attachment.

5. When live-stock is attached it shall not, without the special order of the Court, be brought to the Court or its compound or vicinity, but shall be left at the village or place where it was attached in the manner and on the conditions set forth in rule 3 of this Order:

Provided that live-stock shall not be left in the charge of any person under clause (a) of the said rule unless he enters into a bond for the proper care and maintenance thereof as well as for its production when called for and that it shall not be left in charge of an officer of the Court under clause {b) of the said rule unless in addition to the requirements of the said clause provision be made for its care and maintenance.

6. When for any reason the attaching officer shall find it impossible to obtain compliance with the requirements of the preceding rule so as to entitle him to leave the attached live-stock in the village or place where it was attached and no order has been made by the Court for its removal to the Court, the attaching office shall not proceed with the attachment and no attachment shall be deemed to have been effected.

7. Whenever it shall appear to the Court that live-stock under attachment are not being properly tended or maintained the Court shall make such orders as are necessary for their care and maintenance and may if necessary direct the attachment to cease, and the leave-stock to be returned to the person in whose possession they were when attached. The Court may order the decree-holder to pay any expenses so incurred in providing for the care and maintenance of the live-stock, and may direct that any sum so paid be refunded to the decree-holder by any their party to the proceedings.

8. If under a special order of the Court live-stock is to be conveyed to the Court, the decree-holder shall make his own arrangement for such removal, and if he fails to do so the attachment shall be withdrawn and the property made over to the person in whose possession it was before attachment.

9. Nothing in these rules shall prevent the judgment-debtor or any person claiming to be interested in attached live-stock from making such arrangements for feeding, watering, and tending the same as may not be inconsistent with its safe custody, or contrary to an order of the Court.

10. The Court may direct that any sums which have been legitimately expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the sale-proceeds of the attached property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

11. In the event of custodian of attached property failing, after due notice, to produce such property at the place named to the officer deputed for the purpose, or to restore it to its owner if so ordered or failing in the case of live-stock to maintain and take proper care thereof, he shall be liable to be proceeded against for the enforcement of his bond in the execution proceedings.

12. When property other than live-stock is brought to the Court, it shall immediately be made over to the Nazir, who shall keep it on his sole responsibility in such place as may be approved by the Court. If the property cannot from its nature or bulk be conveniently stored, or kept on the Court premises or in the personal custody of the Nazir, he may, subject to the approval of the Court, make such arrangements for its safe custody under his own supervision as may be most convenient and economical. If any premises are to be hired and persons are to be engaged for watching the property, the Court shall fix the charges for the premises and the remuneration to be allowed to the persons (not being officers of the Court) in whose custody the property is kept. All such costs shall be paid into Court by the decree-holder in advance for such period as (he Court may from time to time direct.

13. When attached live-stock is brought to Court under special order as aforesaid it shall be immediately made over to the Nazir, who shall be responsible for its due preservation and safe custody until he delivers it up under the orders of the Court.

14. If there be a pound maintained by Government or local authority in or near the place where the Court is held, the Nazir shall, subject to the approval of the Court, be at liberty to place in it such live-stock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive from the Nazir the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description.

15. If there be no pound available, or, if in the opinion of the Court, it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep them in his own premises, or he may entrust them to any person selected by himself and approved by the Court.

16. All costs for the keeping and maintenance of the live-stock shall be paid into Court by the decree-holder in advance for not less than fifteen days at a time as often as the Court may from time to time direct. In the event of failure to pay the costs within the time fixed by the Court, the attachment shall be withdrawn and the live-stock shall be at the disposal of the person in whose possession it was at the time of attachment.

17. So much of any sum deposited or paid into Court under these rules as may not be expended shall be refunded to the depositor.”

[Vide Notification No. 25585-G, dated 3rd November, 1933.]

Gauhati.-Same as in Calcutta.

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

1. No abatement by party’s death if right to sue survives

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

HIGH COURT AMENDMENT

Allahabad.-In Order XXII, in rule 1, at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

HIGH COURT AMENDMENT

Punjab and Haryana–In Order XXII, after rule 2, insert the following rules, namely:-

“2A. Every advocate appearing in the case who becomes aware of the death of a party to the litigation (where he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.

2B. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.” [Vide Punjab Government Gazette, Pt. III (L.S.), p. 304, dated 11th April, 1975 and Haryana Government Gazette, Pt. III (L.S.), p. 190, dated 25th March, 1975.]

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Procedure in case of death of one of several defendants or of sole defendant

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

1[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

1[4A. Procedure where there is no legal representative

(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

5. Determination of question as to legal representative.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

1[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

6. No abatement by reason of death after hearing

Nothwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

7. Suit not abated by marriage of female party

(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.

(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject matter of the decree.

8. When plaintiffs insolvency bars suit

(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Procedure where assignee fails to continue suit, or give security-Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff s insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiffs estate.

9. Effect of abatement or dismissal

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the 1[Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).

2[Explanation-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order]

1. See now the Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10. Procedure in case of assignment before final order in suit

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

1[10A. Duty of pleader to communicate to Court death of a party.

Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

11. Application of Order to appeals.

In the application of this Order to appeals, so far as may be, the word “plaintiff shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXII, in rule 11, insert the following proviso, namely:-

“Provided always that where an Appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased under Order XLI, rule 14(3), the appeal shall not be deemed to abate as against such party and the decree made on appeal shall be binding on the estate or the interest of such party.”

[Vide Notification No. 10428-G, dated 25th July, 1928.]

Gauhati.-Same as in Calcutta.

Kerala.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. Entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court.-The entry on the record on the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in case, under appeal to the Supreme Court, may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a judge for disposal.” (w.e.f. 9-6-1959).

Madras.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. The entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the Supreme Court, shall be deemed to be a quasi judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar provided that contested applications and application presented out of time shall be posted before a Judge for disposal.”

12. Application of Order to proceedings.

Nothing in rules 3, 4 and 8 shall apply to proceedings in executive of a decree or order.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXII, in rule 12 at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

[Vide Notification No. 58435 (a)-(2), dated 7th February, 1931.]

Orissa.-In Order XXII, in rule 12, at the end, insert the words “or to proceedings in the original Court taking after the passing of the preliminary decree where having regard to the nature of the suit, a final decree is required to be passed”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS

1[1. Withdrawal of suit or abandonment of part of claim

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]

1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Karnataka.-In Order XXIII, in rule 1, after sub-rule (4), insert the following sub-rule, namely:-

“(5) Where the plaintiff in a suit instituted or conducted under the provisions of rule 8 of Order 1 of this Code or all plaintiffs therein if there are more plaintiffs than one, apply for the permission to withdraw the suit, notice of such application shall be given in the manner prescribed by sub-rule (3) of Order 1 of this Code for issue of notice of institution of the suit, and the cost of such notice shall be borne by the plaintiff or the plaintiffs, as the case may be. If upon such application being made a defendant in the same suit having the same interest as that of the plaintiffs applies for permission to be transposed a§ plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiffs application dismissed.” (w.e.f. 30-3-1967)

Orissa.-In Order XXII, in rule 1, in sub-rule (1), after the words “institution of a suit”, insert the words “but not after the passing of the preliminary decree in the suit”, (7-5-1954)

1[1A. When transposition of defendants as plaintiffs may be permitted

Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]

1. Ins. by Act No. 104 of 1976, s. 74 (w.e.f. 1-2-1977).

2. Limitation law not affected by first suit

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

3. Compromise of suit

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1[in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith 2[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]

1[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]

2[Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, sec. 74. for “so far it relates to the suit” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXIII, in rule 3,-

(i) between the words ‘or compromise’ and ‘or where’, insert the words, ‘in writing duly signed by the parties’ and between the words ‘subject-matter of the suit’ and the words ‘the Court’, insert the words ‘and obtained an instrument in writing duly signed by the plaintiff, (ii) at the end of the rule, insert the following proviso and Explanation, namely:-

“Provided that the provisions of this rule shall not apply to or in any way affect the provisions of Order XXXIV, rules 3, 5 and 8.

Explanation.-The expressions, ‘agreement’ and ‘compromise’, include a joint statement of the parties concerned or their counsel recorded by the Court, and the expression ‘instrument’ includes a statement of the plaintiff or his counsel recorded by the Court.”

[Vide Notification No. 155/Alld-87, dated 31st August, 1974.]

[Ed.-This amendment relates to rule 3 prior to its amendment made by Central Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).]

Karnataka.-In Order XXIII,-

(i) re-number rule 3 as sub-rule (1) thereof

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-::

“(2) Where any such agreement or compromise as is referred to in sub-rule (1) is placed before the Court by a party suing or defending in a representative capacity in a suit instituted, conducted or defended under the provisions of rule 8 of Order I of this Code, the Court shall not proceed with the consideration of the same or to pass a decree in accordance therewith without first notice of the application for recording such agreement or compromise in the manner prescribed in sub-rule (1) of rule 8 of Order 1 of this Code for giving notice of the institution of such suit. The expenses of giving such notice shall be borne by such party or parties as the Court may direct.” (w.e.f. 30-3-1967)

Madras.-In the Order XXIII, in rule 3, in the proviso, for the words “Provided that”, the following shall be substituted, namely:-

“Provided that the subject-matter of the agreement, compromise or satisfaction, in so far as it differs from the subject-matter of the suit, is within the territorial and pecuniary jurisdiction of the Court concerned: Provided further that.”

[Vide R.O.C. No. 3382/78-F1 and S.R.O. No. G-3/81 (w.e.f. 23-1-1981).]

Kerala.-In Order XXIII/ after rule 3, insert the following rule, namely:-

“3A. Settlement of oath.–If the parties agree to have the suit or any part of it decided by an oath taken by one of them in Court or elsewhere and tender a written agreement signed by both of them setting forth the terms of the oath and the place where it is taken, the Court may accept such agreement. After the oath has been taken in the manner proposed, the Court shall decide the case in terms of the agreement. After the agreement has been accepted by the Court, it shall not be competent to any of the parties to withdrawn therefrom without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the Court may decide the case against him or pass such order as it deems proper.” (w.e.f. 9-6-1959)

1[3A. Bar to suit

No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

3B. No agreement or compromise to be entered in a representative suit without leave of Court

(1) no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation.-In this rule, “representative suit” means,-

(a) a suit under section 91 or section 92,

(b) a suit under rule 8 of Order I,

(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,

(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]

4. Proceeding in execution of decrees not affected

Nothing in this Order shall apply to any proceedings in execution of a decree or order.

ORDER XXIV. PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim

The defendant in any suit to recover a debt or damage may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

2. Notice of deposit

Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice

No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.

4. Procedure where plaintiff accepts deposit as satisfaction in part

(1) Where the plaintiff accepts such amount as satisfaction in part only of his claim he may prosecute suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiffs claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff s claim.

(2) Procedure where he accepts it as satisfaction in full-Where the plaintiff accepts such amount as satisfaction in full of his claim he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

Illustrations

(a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed. A pays the money into Court, B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.

(b) B sues A under the circumstance mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his cast of suit. A’s conduct having shown that the litigation was necessary.

(c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 150 and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A’s costs.

ORDER XXV. SECURITY FOR COSTS

1[1. When security for costs may be required from plaintiff

(1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiff are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with India other than the property in suit.

(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1).]

1. Subs. by Act 66 of 1956, sec. 14 for rule 1 (w.e.f. 1-1-1957).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXV, for rule 1, substitute the following rule, namely:-

“1. When security for costs may be required from plaintiff.-(1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff for reason to be recorded to give within the time fixed by it, security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing outside the State and that such plaintiffs does not possess or that one of such plaintiffs possesses any sufficient immovable property within the State other than the property in suit or that the plaintiff is being financed by another person.

(2) Whoever leaves that State under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing outside the State within the meaning of the proviso to sub-rule (1).” (w.e.f. 5-2-1983)

Madhya Pradesh.-In Order XXV, in rule (1), in proviso, at the end, insert the words “or that any plaintiff is being financed by a person not a party to the suit”, (w.e.f. 16-9-1960)

2. Effect of failure to furnish security

(1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.

HIGH COURT AMENDMENTS

Bombay.-In Order XXV, after rule 2, insert the following rule, namely:-

“3. Power to implead and demand security from third person financing litigation.-fl) Where any plaintiff has for the purpose of being financed in the suit transferred or agreed to transfer any share or interest in the property in the suit to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit if he consents, and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned, or declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(2) If such person declines to be made a plaintiff, the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed, the Court may make an order declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 1-10-1983)

Gujarat.-Same as in Bombay,

Karnataka.-In Order XXV, in rule 2, after sub-rule (3) insert the following sub-rule, namely:-

“(4) The provisions of section 5 of the Limitation Act, 1963, shall apply to applications under this rule.” (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXV, for rule 3, substitute the following rule, namely:-

“3. Power to implead and demand security from a third person financing litigation.- (1) Where any plaintiff has, for the purpose of being financed in the suit, transferred or agreed to transfer any share or interest in the property in suit, to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit, if he consents and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned or declaring that he shall be debarred from claiming any right to, or interest in the property in suit.

(2) If such person declines to be made a plaintiff the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed the Court may make an order declaring that he shall be debarred from claiming any right to, or interest in, the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 16-9-1960)

ORDER XXVI. COMMISSIONS

Commissions to examine witnesses

1. Cases in which Court may issue commission to examine witness

Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

1[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation-The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infertility of any person, without calling the medical practitioner as a witness.]

1. Ins, by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 1, substitute the following rule, namely:-

“1. Commission to examine witness.-Any Court may, in any suit, if for the reasons to be recorded in writing, it thinks it necessary to do so in the interest of justice or expedition, issue a Commission for the examination of any person on interrogatories or otherwise.”

[Vide Notification No, 504/XI1I-B-31, dated 22nd November, 1980.]

2. Order for commission

An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court’s jurisdiction

A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 3, substitute the following rule, namely:-

“3. Commission to whom issued.-Such commission may be issued to any Court not being a High Court within the local limits of whose jurisdiction such person resides or to any pleader or other person whom the Court thinks fit to execute it and the Court shall direct whether the commission shall be returned to itself or to any subordinate Court.” (w.e.f. 22-11-1980)

4. Persons for whose examination commission may issue

(1) Any Court may in any suit issue a commission 1[for the examination on interrogatories or otherwise of-]

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) 2[any person in the service of the Government] who cannot in the opinion of the Court, attend without detriment to the public service:

3[Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

1. Subs, by Act No. 104 of 1976, sec. 75, for “for the examination of (w.e.f. 1-2-1977).

2. Subs. by A.O. 1937, for “any civil or military officer of the Government.”

3. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad,-In Order XXVI, omit rule’4. (w.e.f. 18-9-1980)

Madhya Pradesh.-In Order XXVI, in rule 4, in sub-rule (1), after clause (c), insert the following clause, namely:-

“(d) any person who by reason of anything connected with the war cannot conveniently be spared.”

[Vide Notification No. 3409, dated 26th June, 1943.]

Rajasthan.-In Order XXVI, after rule 4, insert the following rule, namely:-

“4A. Commission for examination of any person resident with Court’s local limits.- (I) Notwithstanding anything contained in these rules, any Court may, in the interests of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise of any person resident within the local limits of its jurisdiction and the evidence so recorded shall be read in evidence.

(2) The provisions of sub-rule (1) shall apply to proceedings in execution of a decree or order.”

[Vide Rajasthan Gazette, Extra, Ft, IV (Ga), Sec. 2, dated 1st December, 1973.]

1[4A. Commission for examination of any person resident within the local BE limits of the jurisdiction of the Court

Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.]

1. Ins. by Act No. 46 of 1999 section 29 (w.e.f.. 1-7-2002)

5. Commission or request to examine witness not within India

Where any Court to which application is made for the issue of a commission for the examination B of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

6. Court to examine witness pursuant to Commission

Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7. Return of commission with depositions of witnesses

Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the returned thereto and the evidence taken under it shall 1[subject to the provisions of rule 8] from part of the record of the suit.

1. Subs, by Act No. 104 of 1976, sec. 75, for “subject to the provisions of the next following rule)” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, in rule 7, omit the words “subject to the provision of rule 8” and at the end, insert the words “shall be read as evidence in the suit”, (w.e.f. 22-11-1980)

8. When depositions may be read in evidence

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infermity to attend to be personally examined, or exempted from personal appearance in Court or is a person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

HIGH COURT AMENDMENT

Allahabad,-In Order XXVI, omit rule 8. (w.e.f. 22-11-1980)

Commissions for local investigations

9. Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elecidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

HIGH COURT AMENDMENTS

Calcutta.-In Order XXVI, in rule 9, omit the proviso.

[Vide Notification No. 11223-G, dated 7th April, 1933.]

Gauhati.-Same as in Calcutta.

10. Procedure of Commissioner

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and deposition to be evidence in suit. Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

1[Commissions for scientific investigation, performance of ministerial act and sale of movable property

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10A. Commission for scientific investigation

(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10B. Commission for performance of a ministerial act

(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10C. Commission for the sale of movable property

(1) Where in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such -person as it thinks fit, directing him to conduct such sale and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]

Commissions to examine accounts

11. Commission to examine or adjust accounts

In any suit in which an examination or adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

12. Court to give Commissioner necessary instructions

(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry-The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

Commissions to make partitions

13. Commission to make partition of immovable property

Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner

(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commission (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

HIGH COURT AMENDMENTS

Orissa and Patna.-In Order XXVI, in rule 14, for sub-rules (2) and (3), substitute the following sub-rules, namely:-

“(2) The Commissioner shall then prepare and sign a report or the commissioner (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if necessary) by metes and bounds. The Commissioner or Commissioners shall append to the report or where there is more than one to each report a schedule showing the plots and areas allotted to each party and also unless otherwise directed by the Court, a map showing in different colours the plots or portions of plots allotted to each party. In the event of a plot being sub-divided the area of each sub-plot shall be given in the schedule and also measurements showing how the plot is to be divided. Such report or reports with the schedule and map, if any, shall be annexed to the commission and transmitted to the Court and the Court after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied and when drawing up the final decree shall incorporate in its decree the schedule and the map, if any, mentioned in sub-rule (2) above, as confirmed or varied by the Court. The whole report or reports of the Commissioner or Commissioners shall not ordinarily be entered in the decree. Where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.” (w.e.f. 4-3-1932)

General provisions

15. Expenses of commission to be paid into Court

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with substitution of the words “any of the Courts mentioned in clause (c) of section 78 of this Code” for the words “foreign Courts under the provisions of section 78”.

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 7th April, 1959.]

Madras.-In Order XXVI,-

(i) renumber rule 15 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) Before executing and returning any commission issued by foreign Courts under the provisions of section 78 the Court or the Commissioner required to execute the commission may levy such fees as the High Court may from time to time prescribe in this behalf in addition to the fees prescribed for the issue of summons to witnesses and for expenses of such witnesses under rule 2 of Order XVI.”

Orissa.-In Order XXVI, in rule 15, at the end, insert the words “any after the issue of such omission may order such further sums to be paid into Court from time to time by either party as the Court may consider necessary”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

16. Powers of Commissioners

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

1[16A. Questions objected to before the Commissioner

(1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the gtound of privilege.

(2) No answer taken down under sub-rule (1) shall be read was evidence in the suit except by the order of the Court.]

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

17. Attendance and examination of witnesses before Commissioner

(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of 1[India], and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

2[Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits on whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

1. Subs. by Act 2 of 1951, sec. 3, for “the States”.

2. Ins. by Act No. 104 of 1976, sec. 75, (w.e.f. 1-2-1977).

18. Parties to appear before Commissioner

(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVI, in rule 18, in sub-rule (1), after the words “agents or pleaders”, substitute a comma for the full stop and insert the words “and shall direct the party applying for the examination of the witness or in the discretion any other party to the suit, to supply the Commissioner with a copy of the pleadings and issues.”

[Vide Notification No. 4084/35 (a)-3(7), dated 24th July, 1926.]

Orissa.-Same as in Allahabad, (w.e.f. 29-12-1961)

1[18A. Application of Order to execution proceedings-

The provisions of this Order shall apply so far as may be, to proceedings in execution of a decree or order.

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

18B. Court to fix a time for return of commission

The Court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.]

Commissions issued at the instance of foreign Tribunals

19. Cases in which High Court may issue commission to examine witness-

(1) If a High Court is satisfied-

(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

(b) that the proceeding is of a civil nature, and

(c) that the witness is residing within the limits of the High Court’s appellate jurisdiction,

it may, subject to the provisions of the rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)-

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or

(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or

(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

20. Application for issue of commission

The High Court may issue a commission under rule 19-

(a) upon application by a party to the proceeding before the foreign Court, or

(b) upon an application by a law officer of the State Government acting under instructions from the State Government.

21. To whom commission may be issued

A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court to any person whom the Court thinks fit to execute the commission.

HIGH COURT AMENDMENT

Kerala.-In Order XXVI, for rule 21, substitute the following rule, namely:-

“21. To whom Commission may be issued.-A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or to any person whom the Court thinks fit to execute the commission.” (w.e.f. 9-6-1959).

22. Issue, execution and return of commissions, and transmission of evidence to foreign Court

The provisions of rules 6, 15 1[Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.]

1. Subs, by Act No. 104 of 1976, for “16, 17 and 18” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVI, after rule 22, insert the following rules, namely:-

“23. (1} The Court may in any suit issue a commission to such person or persons as it thinks fit to translate accounts and documents which are not in the language of the Court.

(2) Before issuing such a commission the Court may order such sum, if any, as it thinks reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit the commission has been issued within such time as may be fixed by the Court.

(3) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(4) Where however a translation as required by rule 12 of Order XII of this Code has already been filed into Court, no further commission under this rule need be issued.

(5) A translation submitted by the Commissioner or Commissioners under this rule shall be verified in the manner prescribed in rule 12 of Order XIII of this Code.

24. The provisions of this order shall apply so far as may be, to proceedings in execution of decree or order. Verified in the manner prescribed in rule 12 of Order XIII of this Code.” (w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 9th June, 1959.]

Madras.-In Order XXVI,-

(a) after rule 22, insert the following rule, namely:-

“23. Application of order to execution proceedings.-The provisions of this Order and of Order XXVIA shall apply, so for as may be, to proceedings in execution of a decree or Order.” (w.e.f. 9-6-1923)

(b) after Order XXVI, insert the following Order, namely:-

ORDER XXVI A

1. The Court may in any suit issue a commission to such person as it thinks fit to translate accounts and other documents which are not in the language of the Court.

2. The report of the Commissioner shall be evidence in the suit and shall form part of the record.

3. Before issuing any-commission under this Order, the Court may order such sum

(if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

Orissa.-In Order XXVI –

(a) after rule 22, insert the following rules, namely:

“23. (i) The Court may in any suit issue a commission to such persons as it thinks fit to translate accounts or other documents which are not in Court language or to inspect documents for purposes to be specified in the order appointing such Commissioner.

(ii) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(iii) Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

1. Suits by or against Government

In any suit by or against the Government the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.

STATE AMENDMENTS

Uttar Pradesh.-In the marginal heading of the Order, after the words “official capacity”, insert the words “or Statutory Authorities, etc.” [U.P. Act 57 of 1976].

2. Persons authorised to act for Government

Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, act and applications under this Code may be made or done on behalf of the Government.

3. Plaints in suits by or against Government

In suits by or 1[against the Government] instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert 1[the appropriate name as provided in section 79.2[* * *]]

1. Subs. A.O. 1937, for “against the Secretary of State for India in Council”.

2. Certain words omitted by the A.O. 1948.

1[4. Agent for Government to receive process

The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.]

1. Subs. by the A.O. 1937, for rule 4.

5. Fixing of day for appearance on behalf of Government

The Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion [but the time so extended shall not exceed two months in the aggregate.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVII, in rule 5, after the words “instructions to the Government pleader”, insert the words “or recognised agents of the Government”.

Kerala.-Same as in Madras.

Madras.-In Order XXVII, in rule 5, for the words “a reasonable time”, substitute the words “not less than three months’ time from the date of summons”.

1[5A. Government to be joined as a party in a suit against a public officer

Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.

1. Ins. by Act No. 104 of 1976, sec. 76 (w.e.f. 1-2-1977).

5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement

(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.]

6. Attendance of person able to answer questions relating to suit against Government

The Court may also in any case in which the Government pleader is not accompanied by any person on the part of the Government who may be able to answer any material questions relating to the suit, direct the attendance of such a person.

7. Extension of time to enable public officer to make reference to Government

(1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may necessary to enable him to make such reference and to receive orders thereon through the proper channel.

(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.

8. Procedure in suits against public officer

(1) Where the Government undertakes the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:

Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.

8A. No security to be required from Government or a public officer in certain cases

No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, re-number rule 8A as rule 9.

8B. Definitions of “Government” and “Government pleader”

In this Order unless otherwise expressly, provided “Government” and “Government pleader” mean respectively-

(a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;

1[* * *]

(c) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader as defined in clause (7) of section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.

1. Clause (b) omitted by the A.O. 1948.

STATE AMENDMENT

Uttar Pradesh.-In Order XXVII, after rule 9, insert the following rule, namely:-

“10- Suits by or-against statutory authority.-(1) Any authority or corporation, consituted by or under any law, may, from time to time, appoint a Standing Counsel, to be called Corporation pleader of that authority in any district and give information of such appointment to the District Judge *[and to Registrar of the High Court at Allahabad or a Lucknow Bench, as the case may be].

(2) The Corporation pleader so appointed shall be the agent in that district of the appointing authority or Corporation for purposes of receiving processes against it, but shall not act or plead without filing a vakalatnama or memorandum of appearance.”

[Vide Uttar Pradesh Act 57 of 1976, sec. 11 (w.e.f. 1-1-1977) and * Notification dated 10th February, 1981 (w.e.f. 3-10-1981).]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVII, after rule 8B, insert the following rule, namely:-

“9. In every case in which the District Government Counsel appears for the Government as a party on its own account, or for the Government as undertaking under the provisions of rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file a memorandum on unstamped paper signed by him and stating on whose behalf he appears. Such memorandum shall be, as nearly as may be, in the terms of the following form:-

TITLE OF THE SUIT, ETC.

1. AB. District Government Counsel appears on behalf of the Government of India (or the Government of Uttar Pradesh, or as the case may be) respondent (or etc.). in the suit:-

or, on behalf of the Government [which under order 27, rule 8(1) of Act No. V of 1908, has undertaken the defence of the suit], respondent (or, etc.), in the suit.”

{Vide Notification No. 1953/35 (a), dated 22nd May, 1915.]

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, renumber rules 8A and 8B as rules 9 and 10 respectively, (w.e.f. 2-3-1942)

Orissa.-In Order XXVI, insert the following rule, namely:-

“9. In every case in which the Government pleader appears for the Government as a party on it own accounts or for the Government as undertaking under the provision of rule 8(1), the defence of a suit against an officer of a Government, he shall in lieu of a vakalatnama, file a memorandum of unstamped paper signed by him and stating on whose behalf he appears.” (w.e.f. 14-10-1960)

[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF [THE CONSTITUTION] [OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF 2[THE CONSTITUTION] 3[OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1. Order XXVIIA (containing rules 1, 2, 3, and 4) Ins. by act 23 of 1942, sec.2.

2. Subs. by the A.O. 1950, for “the Government of India Act, 1935, or any Order-inCouncil made thereunder”.

3. Ins. By Act 104 of 1976, sec. 77 (w.e.f. 1-2-1977).

1. Notice to the Attorney General or the Advocate-General

In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132, read with Article 147 of the Constitution is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate-General of the State if the question of law concerns a State Government.

1[lA. Procedure in suits involving validity of any statutory instrument

In any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved, the Court shall not proceed to determine that question except after giving notice-

(a) to the Government pleader, if the question concerns the Government, or

(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.]

1. Ins. by Act No. 104 of 1976, sec.77, (w.e.f. 1-2-1977).

2. Court may add Government as party

The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as it referred to in clause (1) of Article 132 read with Article 147, of the Constitution, if the Attorney General for India or the Advocate-General of the State, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

1[2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument

The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under rule 1A or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

1[3. Costs

Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate-General or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.]

1. Subs. by Act No. 104 of 1976, sec. 77 for rule 3 (w.e.f. 1-2-1977).

4. Application or Order to appeals

In application of this Order to appeals the word “defendant” shall be held to include a respondent and the word “suit” an appeal.

1[Explanation-In this Order, “statutory instrument” means a rule, notification, bye-law order, scheme or form made as specified under any enactment.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

1. Ins. by Act 10 of 1927, sec. 2 and Sch. I.

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to sue or defend for them

(1) Where any officer, soldier, sailor or airman, actual serving under the Government in such capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorize any person to sue or defend in his stead.

(2) The authority shall be writing and shall be signed by the officer, soldier, sailor or airman in the presence of (a) his commanding officer, or the next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, soldier, sailor or airman, is serving in military, naval or air force staff employment the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in Court.

(3) When so filed the countersignature shall be sufficient proof that the authority was duly executed, and that the officer, soldier, sailor or airman by whom it was granted could not obtain leave of absence for the purpose of prosecuting of defending the suit in person.

Explanation-In this Order the expression “commanding officer” means the officer in actual command for the time being of any regiment, corps, ship, detachment or depot which the officer, soldier sailor or airman belongs.

2. Person so authorized may act personally or appoint pleader

Any person authorized by an officer, soldier, sailor or airman to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer, soldier, sailor or airman could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, soldier, sailor or airman.

3. Service on person so authorized, or on his pleader, to be service

Process served upon any person authorized by an officer soldier, sailor or airman under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.

ORDER XXIX. SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading

In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

2. Service on corporation

Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, namely;-

“(aa) on its corporation pleader in the district where the Court issuing summons is located, if one has been appointed and the appointment has been notified to the District Judge under rule 10 of order XXVII, or”.

[Vide Uttar Pradesh Act 57 of 1976, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXIX
SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading

In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

2. Service on corporation

Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, namely;-

“(aa) on its corporation pleader in the district where the Court issuing summons is located, if one has been appointed and the appointment has been notified to the District Judge under rule 10 of order XXVII, or”.

[Vide Uttar Pradesh Act 57 of 1976, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXX. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

1. Suing of partners in name of firm

(1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXX, in rule 1, at the end, insert the following “Explanation “, namely:-

“Explanation.-This rule applied to a joint Hindu family trading partnership.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

2. Disclosure of partners’ names

(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:

1[Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.]

1. Subs, by Act No. 104 of 1976 for the proviso (w.e.f. 1-2-1977).

3. Service

Where persons are sued as partners in the name of their firm, the summons shall be served either-

(a) upon any one or more of the partners, or

(b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management or the partnership business, there,

as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India:

Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.

4. Rights of suit on death of partner

(1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have-

(a) to apply to be made a party to the suit, or

(b) to enforce any claim against the survivor or survivors.

5. Notice in what capacity served

Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.

6. Appearance of partners.

Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

HIGH COURT AMENDMENT

Orissa.- In Order XXX, in rule 6, at the end, insert the following words, namely:-

“But the decree shall, however, cointain the names of all such partners.” (w.e.f. 7-5-1954)

7. No appearance except by partners.

Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

1[8. Appearance under protest

(1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at any material time.

(2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determinig whether that person was a partner of the firm and liable as such.

(3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant.

(4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the laibility of that person as a partner of the firm in execution of any decree that may be passed against the firm.]

1. Subs, by Act No. 104 of 1976 for rule 8 (w.e.f. 1-2-1977).

9. Suits between co-partners

This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners, in common; but not execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

1[10. Suit against person carrying on business in name other than his own

Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.]

1. Subs, by Act No. 104 of 1976 for rule 10 (w.e.f. 1-2-1977).

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

1. Representation of beneficiaries in suits concerning property vested in trustees, etc.

In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee; executor or Administator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.

2. Joinder of trustee, executors and administrators

Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:

Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside India need not be made parties.

3. Husband of married executrix not to join

Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.

ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Minor to sue by next friend

Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.

1[Explanation-In this Order, “minor” means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXXII, in rule 1, at the end, insert the following words, namely:-

“Such person may be ordered to pay any costs in the suit as if he were the plaintiff.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

2. Where suit is instituted without next friend, plaint to be taken off the file-

(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1[2A. Security to be furnished by next friend when so ordered

(1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for the reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.

(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

3. Guardian for the suit to be appointed by Court for minor defendant-

(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) Order shall be made on any application under this rule except upon notice to any 1*** to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian,

2[upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is 2[no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

3[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

1. The words “to the minor and” omitted by Act No. 104 of 1976.

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1- 2-1977).

3. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXII, in rule 3,-

(a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely:-

“and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.”

(b) for sub-rule (4), substitute the following sub-rule, namely:-

“(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

The Court shall after hearing the objections, if any, and considering the respective claims of all persons desirous of being appointed guardian including the proposed guardian, such person as guardian appoint of the minor as it may deem fit.”

(c) in sub-rule (4) insert the following proviso, namely:-

“Provided that if the minor is under twelve years of age no such notice shall be issued to him.”

[Vide Notification No. 43 VIId-29, dated 1st June, 1957.]

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. (1) Same as sub-rule (1) of Madras with substitution of the words “or in the case of a guardian for the suit a plaintiff” by the words “in the suit or in the case of a guardian a plaintiff in the suit”.

(2) Same as sub-rule (2) of Madras with insertion of the words “in writing” after “for reasons to be recorded”.

(3) Same as sub-rule (3) of Madras with addition at the end of: “A person appointed as guardian under this sub-rule shall, unless his appointment is terminated by retirement or removal by the order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any processes in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purpose of such proceedings. r

(4) Same as sub-rule (4) of Madras with the following modifications:-

(i) Before the words “set forth” insert “whether necessary”;

(ii) Omit the words within brackets and the last sentence.

(5) Same as sub-rule (5) of Madras.

(6) Same as sub-rule (6) of Madras with substitution of the word “party” for the words “plaintiff petitions”.

(7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian upon notice to the father or natural guardian of the minor or where there is no father or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application.

(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian notices issued shall clearly require the party served to signify his consent or refusal to act as guardian.

(10) Same as sub-rule (10) of Madras with insertion of the words “or pleader” after the words “by that officer”.

(11) Same as sub-rule (11) of Madras.”

Kerala.-In Order XXXII, in rule 3,-

(i) substitute sub-rule (2) which is the same as sub-rule (4) of Madras.

(ii) in sub-rule (3), at the end, insert the following, namely:- ‘

“The affidavit shall further state the name of the person or persons on whom notice has to be served under the provisions of sub-rule (4).”

(iii) in sub-rule (4), insert the following proviso, namely:-

“Provided that if the minor is under 15 years of age no such notice shall be issued to him.” (w.e.f. 9-6-1959)

Madhya Pradesh.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. Guardian for the suit to be appointed by Court for minor defendant:-(1) Where the defendant is a minor, the Court, not being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit of such minor.

(2) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.” (w.e.f. 16-9-1960)

Madras.-In Order XXXII, for rules 3 and 4, substitute the following rules, namely:-

“3. Qualifications to be a next friend or guardian.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of that person is not adverse to that of the minor and that he is not in the case 6f a next friend, defendant, or in the case of a guardian for the suit, a plaintiff. ,.

(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.-Where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) Guardians to be appointed by Court.-Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor.

(3A) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceeding in execution of a decree.

(4) Appointment to be on application and where necessary after notice to proposed guardian.-An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application, where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons {with their full addresses for service of notice in Form No. 11A set forth in Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above.

(5) Contents of affidavit in support of the application for appointment of guardian.- The application referred to in the above sub-rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed.

The affidavit shall further state according to the circumstances of each case (a) particulars of any existing guardian appointed or declared by competent authority, (b) the name and address of the person, if any, who is the de facto guardian of the minor, (c) the names and addresses of persons, if any, who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest or otherwise, suitable persons to act as guardians for the minor for the suit.

(6) Application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party.-An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant. The applications shall be by separate petitions.

(7) Notice of application to be given to persons interested in the minor defendant other than the proposed guardian.-No order shall be made on any application under sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian, upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

The notice required by this sub-rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in Form No. 11 set forth in Appendix H hereto.

(8) Special provision to shorten delay in getting a guardian appointed.-Where the application is by the plaintiff, he shall, along with his application and affidavit referred to in sub-rules (4) and (5) above, produce the necessary forms in duplicate filled in to the extent that is possible at that stage, for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the Court from the list referred to in sub-rule (4) above together with a duly stamped voucher indicating that the fees prescribed for service have been paid.

If one or more of the proposed guardians signify his or their consent to act, the Court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post. If no one of the persons served signifies his consent to act, the Court shall proceed to serve simultaneously another selected two, if so many there be, of the persons named in the list referred to in sub-rule (4) above but no fresh application under sub-rule (4) shall be deemed necessary. The applicant shall within three days of intimation of unwillingness by the first set of proposed guardians, pay the prescribed fee for service and produce the necessary forms duly filled in.

(9) No person shall be appointed guardian without his consent.-No person shall without his consent, be appointed guardian for the suit. Whenever an application is made proposing the name of a person as guardian for the suit a notice in Form No. 11 A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents.

(10) Court guardian.-When to be appointed-How he is to be placed in funds.- Where the Court finds no person fit and willing to act as guardian for the suit, the Court may appoint any of its officers or a pleader of the Court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested, and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require.

(11) Funds for a guardian other than Court guardian to defend.-When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardians, as and when directed, shall file in Court an account of the monies so received by him.”

Punjab.-In Order XXXII, in rule 3, for sub-rules (3) and (4), substitute the following sub-rules, namely:-

“(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their address, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and in default of compliance, may reject the plaint.

(5) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.

(6) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule:

Provided that the Court may, if it sees fit, issue notice to the minor also.”

[Vide Notification No. 95-G, dated 25th February, 1925 and Notification No. 566-G, dated 24th November, 1927.]

1[3A. Decree against minor to be set aside unless prejudice has been caused to his interests

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend of guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

4. Who may act as next friend or be appointed guardian for the suit

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent 1[in writing] be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, for Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested 1[or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-(a) In Order XXXII, for rule 4, substitute the following rule, namely:-

“4. (1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend, except by leave of the Court.

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor, unless the interest of such person is adverse to that of the minor, or he is a defendant, or the Court for other reasons to be recorded considers him unfit to act.

Every next friend shall, except as otherwise provided by clause (5) of this rule, be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit, or compensation under section 35A or section 95 against the next friend personally as if he were a plaintiff,

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor, unless the decree expressly directs that they shall be so recoverable.”

[Vide Notification No. 4080/35 (a)-3(7), dated 24th July, 1926.]

(b) after rule 4, insert the following rule, namely:-

“4A.(1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be appointed.

(2) Where there is no such guardian or where the Court considers that such guardian should not be appointed it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian the person in whose care the minor is, or any other suitable person who has notified the Court of his willingness to act or failing any such person, an officer of the Court.

Explanation.-An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.”

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXXII, in rule 4, in sub-rule (4), for the words ‘Where there is no other person fit and willing to act as guardian for the suit”, substitute the words “Except as otherwise provided in this Order”.

[Vide Notification No. 8381-G, dated 13th June, 1927.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, omit rule 4. (w.e.f. 30-3-1967}

Kerala.-In Order XXXII, in rule 4,-

(i) in sub-rule (3), at the end, insert the following words, namely:-

“Whenever an application is made proposing the name of a person as a guardian for the result a notice in Form No. 11A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents” (ii) in sub-rule (4), insert the following Explanation, namely:-

“Explanation.-An officer of the Court shall for the purpose of this sub-rule include a pleader of the Court.”

(iii) after sub-rule (4), insert the following sub-rule, namely:-

“(5) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant, and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardian, as and when directed, shall file in Court an account of the’ moneys so received by him.”

[Vide Notification No. 81-3312/58, dated 7th April, 1959.] ”

Madhya Pradesh.-In Order XXXII,-

(a) for rule 4, substitute the following rule, namely:-

“4. Who may act as next friend or guardian for the suit.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or as his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act in either capacity.”

(b) after rule 4, insert the following rule, namely:-

“4A. Procedure for appointment of guardian for the suit.-{1} No person except the guardian appointed or declared by competent authority, shall, without his consent, be appointed guardian for the suit.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Unless the Court is otherwise satisfied of the fact that the proposed guardian has no interest adverse to that of the minor in the matters in controversy in the suit and that he is a fit person to be so appointed, it shall require such application to be supported by an affidavit verifying the fact.

(4) No order shall be made on any application for the appointment as guardian for the suit of any person, other than a guardian of the minor appointed or declared by competent authority, except upon notice to the proposed guardian for the suit and to any guardian of the minor appointed or declared by competent authority, or, where there is no such guardian, the person in whose care the minor is, and after hearing, any objection that may be urged on a day to be specified in the notice. The Court may, in any case, if it thinks fit, issue notice to the minor also.

(5) Where, on or before the specified day, such guardian fails to appear and express his consent to act as guardian for the suit, or, where he is considered unfit, or disqualified under sub-rule (3), the Court may, in the absence of any other person fit and willing to act, appoint any of its ministerial officer, or a legal practitioner, to be guardian for the suit. If a legal practitioner is appointed guardian for the suit, the Court shall pass an order stating whether he is to conduct the case himself or engage another legal practitioner for the purpose.

(6) In any case in which there is a minor defendant, the Court may direct that a sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses of the minor defendant in the suit including the expenses of a legal practitioner appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff shall be adjusted in accordance with the final order passed in the suit in respect of costs.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXXII, omit rule 4.

Orissa.-Same as in Patna.

Patna.-In Order XXXII, in rule 4, in sub-rule (4), for the words “Where there is no other person fit and willing to act as guardian for the suit”, substitute the following words, namely:-

“Where the person whom the Court after hearing objections, if any, under sub-rule (4) of rule 3, proposes to appoint as guardian for the suit, fails, within, the time fixed in a notice to him to express his consent to be so appointed”.

Punjab.-In Order XXXII, in rule 4,~~

(a) after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where a minor defendant has no guardian appointed or declared by competent authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian for the suit a relative of the minor.

If no person be available who is a relative of the minor the Court shall appoint one of the other defendants, if any and failing such other defendant, shall ordinarily proceed under sub-rule (4) of this rule to appoint one of its officers or a pleader.”

(b) [* * *]

(c) in sub-rule (4), after the words “any of its officers” insert the words “or a pleader” and for the words “such officer”, substitute the words “such persons”.

[Vide Notification No. 566-G, dated 24th November, 1927 as amended by Notification No. 209-R-XI-Y-3, dated 22nd July, 1936) and Notification No. 281-R-XI-Y-3, dated 19th September, 1936.]

5. Representation of minor by next friend or guardian for the suit

(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

6. Receipt by next friend or guardian for the suit of property under decree for minor

(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either-

(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application:

1[Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian-

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or

(b) is the parent of the minor.]

1. Ins. by Act No. 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

7. Agreement or compromise by next friend or guardian for the suit

(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

1[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend of the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.]

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXII, in rule 7, in sub-rule (2), at the end, insert the following proviso, namely:-

“Provided also that the Court may in its discretion dispense with such security and impose such other condition as it thinks fit, in case where it is satisfied that any money is needed for the maintenance, medical care or education of the minor and the guardian or next friend is unable to furnish security.”

[Vide Notification No. ROC 2756/56, B1, dated 5th December, 1959.]

Karnataka.-In Order XXXII, in rule 7, renumber sub-rule (2) as sub-rule (3) and insert the following sub-rule, namely:-

“(2) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or order person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to affect the interests of the minor or other person under disability and the reason why such compromise, agreement or other action is expected to be for the benefit of the minor or other person under disability; where in such a case the minor or other person under disability is represented by counsel or pleader, the said counsel or pleader shall also file into Court along with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability.

If the Court grants leave under sub-rule (1) of this rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in respect of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall also set out either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of the other action.” (w.e.f. 30-3-1967)

Kerala.-In Order XXXII, in rule 7, insert sub-rule (1A) as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXXII, in rule 7, insert the following sub-rule, namely:-

“(1A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in court with the application a certificate to the effect that the agreement or compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this Schedule.”

[Vide Dis No 1647 of 1910.]

8. Retirement of next friend

(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

9. Removal of next friend

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him, or where he does not do his duty, or during the pendency of the suit, ceases to reside within India or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove that next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.

10. Stay of proceedings on removal, etc., of next friend

(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

11. Retirement, removal or death of guardian for the suit

(1) Where the guardian for the suit desire to retire or does not do his duty, or where there sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.

HIGH COURT AMENDMENT

Allahabad.-In Order XXXII, in rule 11,-

(i) in sub-rule (1), at the end, omit the words “and may make such order as to costs as it thinks fit”; (ii) in sub-rule (1), insert the following proviso, namely:-

“Provided that where the guardian desires to retire without reasonable cause the Court shall, while permitting him to retire, direct that he shall pay the cost to be incurred in the appointment of a fresh guardian.”

[Vide Notification No. 43/VII-d 29, dated 1st June, 1957.]

12. Course to be followed by minor plaintiff or applicant on attaining majority

(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:

“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.

(5) Any application under this rule may be made exparte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

13. Where minor co-plaintiff attaining, majority desires to repudiate suit-

(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.

(3) The costs of all parties of such application, and of all or any proceedings therefore had in the suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

14. Unreasonable or improper suit

(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXXII, after rule 14, insert the following rule, namely:-

“14A. When a minor defendant attains majority either he or the guardian appointed for him in the suit or the plaintiff may apply to the Court to declare the said defendant a major and to discharge the guardian and notice thereof shall be given to such among them as are not applicants. When the Court by order declares said defendant as major it shall by the same order discharge the guardian and thereafter the suit shall be proceeded with against the said defendant as a major.” (w.e.f. 30-3-1967)

Kerala.-In Order XXXII, after rule 14, insert rule 14A which is same as in Madras with the following modifications:-

(i) add the following as marginal note:-

“Appointment or discharge of a next friend or guardian for the son of a minor to be performed by Registrar”,

(ii) omit the following words:-

“shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXXII, after rule 14, insert the following rule, namely:-

“14A. The appointment or discharge of a next friend or guardian for the suit of a minor in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the [Supreme Court], shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a Judge for disposal.”

[Vide Dis No. 1601 of 1914.]

1[15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind

Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, or protecting their interest when suing or being sued.]

1. Subs. by Act 104 of 1976 for rule 15 (w.e.f. 1-2-1977)

1[16. Savings

(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.

(2) Nothing contained in this Order shall construed as affecting or in any way derogating from the provisions of any local law for the time being in force relating to suits by or against minors or by against lunatics or other persons of unsound mind.]

1. Subs. by Act 104 of 1976 for rule 16 (w.e.f. 1-2-1977)

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

[Vide Notification No. ROC No. 6842/51-B 1, dated 9th August, 1957.]

Madras.-In Order XXXII, after rule 16, insert the following rule, namely:-

“17. In suits relating to the person or property of a minor or other person under the superintendence of the Court of Wards the Court in fixing the day for the defendant to appear and answer shall allow not less than two months “time between the date of summons and the date for appearance.”

[Vide Dis No. 644 of 1941].

[ORDER XXXIIA. SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1[ORDER XXXIIA. SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1. Order XXXIIA Ins. by Sec. 80 by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1. Application of the Order

(1) The provision of this Order shall apply to suits or proceedings relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:-

(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to legitimacy of any person;

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.

2. Proceedings to be held in camera

In every suit or proceeding to which this Order applies, the proceeding may be held in camera if the Court so desires and shall be so held if either party so desires.

3. Duty of Court to make efforts for settlement

(1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.

4. Assistance of welfare expert

In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 or this Order.

5. Duty to inquire into facts

In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far is reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

6. “Family”-meaning of

For the purposes of this Order, each of the following shall be treated as constituting a family, namely:-

(a) (i) a man and his wife living together,

(ii) any child or children, being issue or theirs; or of such man or such wife,

(iii) any child or children being maintained by such man or wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;

(c) a woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.

Explanation-For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be without any prejudice to the concept of “family” in any personal law or in any other law for the time being in force.]

ORDER XXXIII. [SUITS BY INDIGENT PERSONS]

ORDER XXXIII. 1[SUITS BY INDIGENT PERSONS]

1. Subs, by Act No. 104 of 1976 for “Suits by Paupers” (w.e.f. 1-2-1977).

1. Suits may be instituted by in by indigent person.

Subject to the following provisions, any suit may be instituted by 1[an indigent person]

2[Explanation I—A person is an indigent person,—

(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation II—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.]

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs, by Act No. 104 of 1976 for the former Explanation (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-In Order XXXIII, in rule 1, for Explanation I, substitute the following Explanation, namely:-

“Explanation 1.-A person shall be deemed to be an indigent person if he is not possessed to means exceeding rupees one thousand in value or where he is possessed of means exceeding one thousand rupees in value, the same are not sufficient to enable him to pay fees prescribed by law for the plaint. For the purposes of this Explanation the means which a person is possessed of shall be deemed not to include property exempt from attachment in execution of a decree and the subject-matter of the suit.” (w.e.f. 1-10-1983)

Kerala.-In Order XXXIII, in rule 1,-

(i) for Explanations, substitute the following Explanations, namely:-

Explanation 1.-A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit,

Explanation 11,-Where the plaintiff sues in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity,” (w.e.f. 9-6-1959)

[Ed.-This amendment relates to rule 1 prior to its amendment made by the Central Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).]

1[1A. Inquiry into the means of an indigent person

Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and the Court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.]

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

2. Contents of application

Every application for permission to sue as 1[an indigent person] shall contain the particulars required in regard to plaints in suits: a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

1. Subs, by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

3. Presentation of application

Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:

1[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIII, in rule 3, after the words “unless he is exempted from appearing in Court”, insert the words “or detained in prison”.

[Vide Notification No. 2457/35 (a)-1, dated 8th May, 1937.]

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)

Kerala.-In Order XXXIII, in rule 3, insert the following Explanation namely:-

“Explanation,-Where there are more applications than one presentation by one shall be deemed to be sufficient compliance with the provisions of the rule.” (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 3, at the end, insert the following words, namely:-

“The High Court may by general or special order exempt any person or class of persons from the obligation to present in person an application for permission to sue as a pauper.”

4. Examination of applicant

(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

(2) If presented agent, Court may order applicant to be examined by commission—Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.

5. Rejection of application

The Court shall reject an application for permission to sue as 1[an indigent person]—

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

(b) where the applicant is not 1[an indigent person], or

(c) where he has, within two months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as 1[an indigent person]:

2[Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person,] or

(d) where his allegations do not show a cause of action, or

(e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter,2 [or]

2[(f) where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation.]

1. Subs. by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIII, in rule 5,-

(a) in clause (a), between the figure “3” and the word “, or” insert the words “and the applicant on being required by the Court to make any amendment within a time to be fixed by the Court, fails to do so”.

(b) at the end of the rule, insert the following Explanation, namely:-

“Explanation.-An application shall not be rejected under clause (d) merely on the ground that the proposed suit appears to be barred by any law.” (w.e.f. 15-4-1933)

Andhra Pradesh.-In Order XXXIII, in rule 5, for clause (d), substitute the following clause, namely:-

“(d) where the allegations in the application show that suit is barred by law or do not show a cause of action, or”.

Karnataka.-In Order XXXIII, in rule 5, in clause (a), between the figure “3” and the word “, or” add the words “and the applicant when required by the Court to rectify the defect within a time to be fixed by the Court fails to do so, or”, (w.e.f. 30-3-1967}

Kerala.-In Order XXXIII, in rule 5, after clause {d}, insert the following clause, namely:-

“(d1) Where the suit appears to be barred by any law, or”, (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 5, for clause (d), substitute the following clauses, namely:-

“(d) where the allegations do not show a cause of action, or

(d1) where the suit appears to barred by any law, or” (w.e.f. 22-10-1940)

6. Notice of day for receiving evidence of applicant’s indigency

Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten day’s clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXIII, for rule 6, substitute the following rule, namely:- “6. Where the Court sees no reason to reject the application on the grounds stated in clauses (a) and {d) of rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party and the Government Pleader) for receiving evidence from the parties including the Government Pleader with regard to the matters specified in clauses (b), (c) and (e) of rule (5).” (w.e.f. 4-3-1975)

Karnataka, Kerala and Madras:-In Order XXXIII, for rule 6, substitute the following rule, namely:-

“6. Notice of day for inquiring into the applicants right to sue as pauper.-Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall nevertheless fix a day of which at least ten days’ clear notice shall be given to the opposite party and to the G.P. for receiving such evidence as the applicant may adduce to prove that the application is not subject to any of the prohibitions in rule 5 and for hearing any evidence which may be adduced to the contrary.” (w.e.f. 9-6-1959).

7. Procedure at hearing

(1) On the day so fixed or as soon thereafter as may be convenient the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a full record of their evidence.

1[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rule 5.]

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court 2[under rule 6 or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule 5.

(3) The Court shall then either allow or refuse to allow the applicant to sue as 3[an indigent person].

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka,-Same as in Madras, (w.e.f. 30-3-1967)

Kerala.-In Order XXXIII, in rule 7, in sub-rule (3), at the end, substitute a comma for the full stop and insert the words “or direct that the application be filed as a plaint on the applicant paying the requisite Court-fee within thirty days or such reasonable time as the Court may fix.” (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 7, after sub-rule (3), insert the following as sub-rule, namely:-

“(4) Where the application is for leave to sue in a representative capacity under Explanation (iii) to rule 1, or under sections 91, 92 or under Order 1, rule 8 the Court may, if it thinks fit for reasons to be recorded in writing, direct that the plaintiff shall give security for the payment of Court-fee.”

8. Procedure if application admitted

Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee 1[or fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

9. Withdrawal of permission to sue as an indigent person

The Court may, on the application of the defendant, or of the Government pleader, of which seven days’ clear notice in writing has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn—

(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(b) if it appears that his means are such that he ought not to continue to sue as 1[an indigent person]; or

(c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter.

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Orissa.-In Order XXVIII, in rule 9,-

(i) in clause (c), at the end, insert the word “or”;

(ii) after clause (c), inert the following clause, namely:-

“(d) if he has entered into an arrangement with any other person to finance the litigation.”

1[9A. Court to assign a pleader to an unrepresented indigent person

(1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him.

(2) The High Court may, with the previous approval of the State Government, make rules providing for—

(a) the mode of selecting pleaders to be assigned under sub-rule (1);

(b) the facilities to be provided to such pleaders by the Court;

(c) any other matter which is required to be or may be provided by the rules for giving effect to the provisions of sub-rule (1).]

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-In exercise of the powers conferred by sub-rule (2) of rule 9A of Order XXXIII, of the Code of Civil Procedure, 1908, the High Court of Judicature at Bombay with the previous approval of the Government of Maharashtra, makes the following rules for assignment of a pleader to an unrepresented indigent:-

1. Short title and commencement.-These rules may be called Assignment of a Pleader to an Unrepresented Indigent Person (Maharashtra) Rules, 1980.

2. Definitions.-In these rules, unless the context otherwise requires;

(a) ‘High Court’ means the High Court of Judicature at Bombay;

(b) ‘Pleader assigned’ means a Pleader assigned under these rules to represent an indigent person;

(c) ‘Panel’ means list of Pleaders prepared and maintained under these rules;

(d) ‘Constituting Authority’ means the authority empowered under these rules to constituting the panel.

3. The authority referred to in column No. 1 below shall continue panel of pleaders willing to appear for an unrepresented indigent person in civil proceedings in Courts referred to in column No. 2 against them:

Name of Constituting AuthorityName of the Court for which panel to be constituted
1Prothonotary and Senior Master High Court, Original Side, Bombay.High Court, Original Side, Bombay.
2Registrar, High Court, Appellate Side, Bombay.High Court, Appellate Side, Bombay.
3Special Officer, Nagpur.High Court Bench at Nagpur.
4District Judge.Courts at District Headquarters.
5Principal Judge, Bombay City Civil Court.Bombay City, Civil Court.
6Chief Judge, Small Causes Court senior most Judge at the Station.Small Causes Court, Bombay for Courts outside District Headquarters.

Provided that the panel constituted by the senior most Judge outside the District Headquarters shall be subject to the previous approval of the District Judge.

4. The Constituting Authority shall prepare the panel in consultation with the President of the Bar Association, and if there be no Bar Association, in consultation with the pleaders practising in the Court for which panel is constituted.

5. Eligibility.-A pleader with a standing of not less than three years at the Bar shall be eligible for being taken on the panel.

6. Removal.-The Constituting Authority may strike off the name of a pleader from the panel when the pleader ceases to practice due to any reason or when he intimates his unwillingness in writing under rule 15 or when the Constituting Authority finds that the pleader after accepting a engagement neglects or refuses to discharge his duties. Before striking off a name for neglect or refusing to discharge duties properly, the Constituting Authority shall give an opportunity to the pleader to be heard.

7. Revision of Panel.-The Constituting Authority may add to the panel names of pleaders after following the procedure referred to in rule 4 as and when it deems necessary to do so.

8. When a pleader is to be assigned to an unrepresented indigent person such assignment shall be made from out of the panel by the Court concerned.

9. The pleader assigned shall not refuse assistance to the indigent person unless the Court is satisfied that he has good reasons for so refusing.

10. The Court may for sufficient reasons permit the pleader assigned, to withdraw from the proceeding and assign another to represent the indigent person. On such permission for withdrawal being granted, the pleader original assigned, shall hand over the papers relating to the proceeding to the pleader assigned subsequently.

11. The Court or Constituting Authority at any time if deemed proper may call for a report from the pleader assigned, regarding the progress of the suit or proceedings entrusted to him.

12. The pleader assigned shall take care that no notice is served, summons issued or petition presented without good cause in prosecution of the indigent person’s cause.

13. Whilst a person sues or defends as an indigent person, the pleader assigned shall not take or agree to take or seek to obtain from him or any other person any fee, pro/it or reward for the conduct of his useness in the Court:

Provided that notwithstanding anything herein contained, the Court of a Judge shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct payment thereof to the pleader assigned.

14. The pleader assigned the case under these rules shall be paid the fees in various Courts at the rates mentioned below:

 (a)In all legal proceedings in the High Court at Bombay and Nagpur and in City Civil Court in Bombay.Rs. 50 per day subject to maximum of Rs. 150 in any one case.
(b)In all proceedings in Courts at District Headquarters and in Small Causes Courts in BombayPuna and Nagpur.Rs. 25 per day subject to a maximum of Rs. 100 in any one case.
(c)In all proceedings in Courts in Taluka.Rs. 15 per day subject to a maximum of Rs. 50 in any one case.

The expenditure on this account shall be met from budget grants sanctioned under budget head 214-Administration of Justice Legal Advisers and Counsel-M (i) and M (ii).

15. Intimation of unwillingness to continue on panel.-The pleader taken on the panel may if he so desire intimate in writing his unwillingness to continue to be on the panel and on receipt of such intimation, his name shall be deleted from the panel provided that Constituting Authority may request the pleader assigned to continue to represent the indigent person in the matters assigned. (By order of the Hon’ble the Chief Justice and Judges)

[Vide Mah. Gazette Pt. IV-Ka, dated 18-9-1980.]

Calcutta.-In exercise of the powers conferred by article 227 (2) (b) of the Constitution of India and by sub-rule (2) of rule 9A of Order XXXIII of the Code of Civil Procedure the High Court of Calcutta, with the approval of the Government of West Bengal has framed the following rules which are published for general information:

Rules under Order XXXIII, rule 9A (2) of the Code of Civil Procedure:

1. (a) For the purpose of selection of pleaders to be assigned under sub-rule (1) of rule 9A of Order XXXIII of the Code the District Judge in consultation with the senior most judicial officers of the outlying stations shall prepare and maintain a panel of pleaders for (a) the district headquarters, and (b) the outlying stations.

The District Judge in his discretion may also consult the President of the Civil Bar Association.

(b) The panel to be proposed under sub-rule (1) shall be in two parts. The first part of the panel shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense.

(c) An advocate who has been in practice for not less than five years in the Civil Courts and whose name has been entered on the rolls of Bar Counsel of West Bengal shall be eligible for being brought on the panel of pleaders.

(d) The District Judge shall revise the panel every two years in consultation with the senior most judicial officers of the outlying stations.

(e) The District Judge shall circulate the panel to all the Civil Courts in the District.

(f) No assignment shall be made to any pleader whose name does not appear in the panel.

2. In any case where it is decided to assign a pleader under Order XXXIII of the Code, every Court trying a cause (hereinafter called “the Court”) shall endeavour in the first instance to select a suitable advocate from that part of the panel which comprises the name of advocates willing to appear for undefended indigent persons without charging any fee. In case where it is not possible to assign a pleader, free of charges, the Court may assign a pleader at State expense.

3. The Court shall have power to terminate the assignment of a panel pleader for sufficient reasons to be recorded in writing and to make fresh assignment of another panel pleader in his place:

Provided that a pleader engaged by the Court shall retire from the trial if and when the indigent person engages lawyer at his own expense.

4.(1) A common register of the panel pleaders to be assigned for undefended indigent persons at State expense shall be maintained at each station showing: (a) name of the pleader; {b) date of assignment; (c) Court by which assigned; (d) No. of the case; (e) No. of days of work; (f) fees paid.

(2) A statement containing the particulars to be entered in the register shall be sent to the District Judge by each Court after conclusion of every trial in which a panel pleader is assigned at State expense.

(3) Every Court at a station shall, before selecting a panel pleader call for and consult the common register in order to ensure an even distribution of assignments amongst such panel pleaders.

5. The ordinary fees payable to a panel pleader assigned at State expense shall not be less than Rs. 50 and not more than Rs. 300 for the entire case at the discretion of the Presiding Officer of the Court.

6. Any vacancy in the panel due to death, incapacity, resignation or any other cause may be filled up by the District Judge in the manner provided in rule 1.

7. All panel pleaders engaged at State expense shall maintain in duplicate a monthly Register of Work in the form prescribed in the Schedule in loose sheets, one sheet being used for each separate case in which the pleader appears and the

initial of the Presiding Officer shall be taken daily in the appropriate column. After the disposal of each case in which he appears he shall obtain the signature of the Presiding Officer to the certificate of correctness on the sheet showing the work done in his Court. The duplicate of such sheet shall be preserved in the office of the District Judge for two years from the date of sanction of the bill.

8. As early possible after the delivery of the judgment of the cases the panel pleader shall submit to the Presiding Officer a bill in the prescribed form for the work done supported by the sheet of the Register of Work containing the certificate of the Presiding Officer.

9. The bill shall be checked with the Register of Work by the Chief Ministerial Officer, who shall certify its correctness, endorse the relevant sheet as checked; with his initial and obtain the signature of the Presiding Officer. The bill and Register of Work shall then be submitted to the District Judge for passing and after satisfying ,r himself as to the correctness thereof, he shall pass the bill for payment.

10. The District Judge shall be Controlling Officer for payment and audit of all fees payable to panel pleaders engaged at State expense in the Civil Courts in his District.

SCHEDULE

FORM I
(Rule 7)
Register of Work

DateNo. and nature of caseActual daily duration of hearingFull or half daySerial No. of con­secutive days of hearingInitial of Presiding Officer
(1)(2)(3)(4)(5)(6)

Total number of days:
Certified correct
Signature of Presiding Officer
Date:

FORM II
(Rule 8)

Bill. of fee due to……….. in…. …….No………. ….of the Court of……………

DateRegister of Works No.Full or half dayAmount of fee chargedRemarks
(1)(2)(3)(4)(5)

Total ………….Rupees………….Paise………….only

Verified with the Register
of Work as correct
Signature of Chief Ministerial

Passed for Rupees…………. (in words and figures)

Officer with date
Signature of Presiding Officer with date

District Judge

(Appellate Side : 15425, dated 22nd November, 1979)

Haryana.-The following rules have been framed for regulating the appointment of pleaders to represent indigent persons in civil suits:-

LEGAL AID TO INDIGENT PERSONS (PUNJAB, HARYANA AND
CHANDIGARH ADMINISTRATION) RULES, 1981

PART I

1. Short title and commencement-(1) The rules may be called the Legal Aid to the Indigent Persons {Punjab, Haryana and Chandigarh Administration) Rules, 1981

(2) These rules shall come into force from the date of their publication in the Official Gazette.

2. Definitions.-In these rules, unless the context otherwise requires,-

(a) ‘High Court’ means the High Court of Punjab and Haryana at Chandigarh;

(b) ‘Pleader’ includes any person whose name is entered on the rolls of the Bar Council of Punjab and Haryana maintained under the Advocates Act, 1961 and the rules framed thereunder;

(c) ‘List’ means the list of advocates prepared and maintained by District Judge separately for cash sub-division of the District under these rules, willing to appear for the undefined indigent persons in civil suits at State expense or free of charge.

(d) ‘Code’ means the Code of Civil Procedure, 1908, as amended from time to time.

PART II

3. Assignment of advocates for indigent persons.-(1) Where a person who is permitted by a Court to sue as an indigent person under sub-rule (3) of Rule 7 of Order XXXIII of the Code, is not presented by a pleader, the Presiding Officer of the Court shall, if the circumstances of the case so required, assign a pleader to him from the list.

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from that part of the list which comprises the names of advocates, if any, willing to appear for undefended indigent persons without charging any fee.

PART III

4. Preparation of list.-(1) The District Judge shall prepare and maintain a list of 5 to 15 suitable advocates willing to appear for the undefended indigent persons at the state expense or without charging any fee separately for each sub-division of the district in relation to which he exercises jurisdiction, after consultation with the senior most Judicial Officer for the time being posted at the headquarters of each such sub-division and the president of the Bar Association of that place.

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates, who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

(3) An advocate with a standing of not less than five years at the Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

(4) The District Judge shall revise the list in the month of December in each year.

(5) The District Judge, shall in the month of January in each year, communicate the names of the advocates on the list maintained for each sub-division of his District (s) to the High Court in the following form:- “j-

(1) Name of the advocate

(2) Date of birth

(3) Qualification: University degrees Distinctions earned in Law (if any)

(4) Date of enrolment at the Bar.

(5) Place of practice.

(6) Length of actual practice.

(7) General reputation and standing at the Bar.

(8) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

(9) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason.

PART IV

5. Facilities to advocates selected from the list.-

(1) Where an advocate is assigned to represent, indigent persons at State expense or otherwise, the Court shall allow a period of at least seven days to the advocate to prepare the brief and shall adjourn the hearing of the case for that purpose.

(2) The Court shall allow, free of cost, inspection of the records of the case by the advocate so assigned.

PART V

6. Scale of fees.-(1) The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the presiding officer of the Court.

(2) In special cases the District Judge may add any reasonable amount not exceeding Rs. 100 to the ordinary fee allowed by sub-rule (1) with the prior approval of the High Court.

(3) No fee shall be payable for the day on which the case is adjourned without any proceeding being taken by the Court, except at the first hearing of the case: Providing that if an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get a fee of Rs. 50 as compensation.

7. Maintenance of Diary by Advocates engaged at State expense.-An advocate engaged to represent an indigent person in any Court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter signatures by the Presiding Officer of the Court a diary containing following details fully set out:-

DateThe name and title of the caseName of the party representedDuration of hearingWork doneSignature of the Presiding OfficerRemarks

8. Payment of fees.-(1) The District Judge shall be the controlling Officer for the payment and audit of all fees due to advocates engaged to represent indigent persons in Courts subordinate to the High Court.

(2) The advocates listed shall submit their bills to the District Judge within one month of the disposal °f me case by the Court.

[Vide Notification No, 70/p3/CA./5/1908-R9A/Order/XXXIII, dated 7th May, 1981, published in Haryana Gazette, L.S. pp. 509-511, dated 19th May, 1981.]

Himachal Pradesh.-The following rules have been made for regulating the appointment of, Pleaders to represent indigent persons in civil suits, namely:-

LEGAL AID TO INDIGENT PERSONS (HIMACHAL PRADESH HIGH COURT) RULES, 1979.

PART I

1. Short title and commencement.-(1) These rules may be called the Legal Aid to the Indigent Persons (Himachal Pradesh High Court) Rules, 1979.

(2) These rules shall come into force with immediate effect.

2. Definitions.-In these rules, unless the context otherwise requires.-

(a) “High Court” means the High Court of Himachal Pradesh at Simla;

(b) “Pleader” includes any person whose name is entered on the rolls of the Bar Council of Himachal Pradesh maintained under the Advocates Act, 1961, and the Rules framed thereunder;

(c) “List” means the list of advocates prepared and maintained by the District Judge separately for each Sub-Division of the District under these rules, willing to appear for the undefended indigent persons in civil suits at State expense or free of charges;

(d) “Code” means the Code of Civil Procedure, 1908, as amended from time to time.

PART II

3. Assignment of advocate for indigent persons.-

(1) Where a person who is permitted by a Court to sue or a person who desires to plead a set off or counter claim in a suit filed against him as an indigent person under sub-rule (3) of Rule 7 and Rule 17, respectively, of Order XXXIII of the Code, is not represented by a pleader the Presiding Officer of the Court shall if the circumstances of the case so required, assign a pleader to him from the list

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from the first part of the list mentioned in sub-rule (4) of Part III, failing which the persons from the Part II of the list will be appointed.

PART III

4. Preparation of list.-

(1) The District Judge shall prepare and maintain a list of 3 to 10 suitable advocates willing to appear for the undefended indigent persons at the State expense or without charging any fee separately for each Sub-Division of the District in relation to which he exercises jurisdiction, after consultation with the senior most judicial officer for the time being posted at the headquarters of each such sub-division and the President of the Bar Association of that place.

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent person (s) without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

(3) An advocate with a standing of not less than three years at Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall, so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

(4) The District Judge shall revise the list in the month of December in each year.

(5) The District Judge shall in the month of January in each year, communicate the names of the advocates on the list maintained for each Sub-Division of his District(s) to the High Court in the following form:-

(1) Name of the Advocate.

(2) Date of birth.

(3) Qualification: University Degrees: Distinctions earned in law (if any)

(4) Date of enrolment at the Bar.

(5) Length of actual practice.

(6) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

(7) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason..

PART IV

5. Facilities to advocates selected from the list.-(1) Where an advocate is assigned to represent an indigent person at State expense or otherwise, the Court shall allow a period of at least sev.en days to the advocates to prepare the brief and shall adjourn the hearing of the case for that purpose.

(2) The Court shall allow free of costs inspection of the records of the case by the advocate so assigned,

(3) The Court, where the deposition of witness is recorded by a stenographer during trial shall, supply copies of such depositions to the advocate so appointed free of cost.

PART V

6. Scale of fees.-The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the Presiding Officer of the Court.

(2) In special cases, the District Judge may add any reasonable amount to the ordinary fee allowed by sub-rule (1) with the prior concurrence of the High Court.

(3) If an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get the minimum of the amount of fee fixed under sub-rule (1) above as compensation, or such other amount as the Presiding Officer in his discretion may allow subject to maximum fixed in sub-rule (1).

7. Maintenance of diary by advocates engaged at State expense.-An advocate engaged to represent an indigent person in any court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter-signatures by the Presiding Officer of the Court a diary containing following details fully set out:–

DateThe name and title of the caseName of the partyDuration of hearingWork doneSignature of the Presiding OfficerRemarks
(1)(2)(3)(4)(5)(6)(7)

8. Payment of fees.-(1) The District Judge shall be the controlling officer for the payment and audit oft all fees due to advocates engaged to represent indigent persons in courts subordinate to the High Court.

The fee shall be debitable to the major Head “214-Administration of Justice Civil and Session Courts payment of Professional and Special Services.”

(2) The advocates shall submit their bills to the District Judge within one month of the disposal of the case by the Court or such other extended time the District Judge may allow.

PART VI

9. Recovery of fee.-(1) Where an indigent person succeeds in the suit or counter-claim filed by him and is awarded costs, the Court shall direct that the pleader’s fee paid to advocate under Rule 3 of the sub-rule (1) of Part II shall be included in the memo of costs appended to the decree-sheet and that amount shall be ordered to be recovered from the said person and the said amount shall be the first charge on the subject-matter of the decree.

(2) The amount of fee recovered shall be deposited in the government account under the proper head of ‘Receipts’.

(3) The District Judge shall submit to the High Court quarterly statement regarding the amount so recovered under Rule 9 (1) with particulars of the case.

[vide Notification No. HHC Admn. 22(6)/78, dated 6th November, 1979, Published in Himachal Pradesh Gazette, Pt. III, dated 15th December, 1979.]

10. Costs where 1[indigent person] succeeds

Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 1[an indigent person]; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

1. Subs. by Act No. 104 of 1976, sec. 81 for “pauper” (w.e.f. 1-2-1977).

11. Procedure where1[indigent person] fails

Where the plaintiff fails in the suit or the permission granted to him to sue as an 1[indigent person] has been withdrawn, or where the suit is withdrawn or dismissed,— (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service 2[or to present copies of the plaint or concise statement], or (b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 2[an indigent person].

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1- 2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXIII, for rule 11,- (i) substitute as in Madras by renumbering it as sub-rule (1) thereof; (ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Where the suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, but no provision is made for the payment of Court-fee, the Court may direct either of or both the parties to pay the Court-fee or any proportionate part thereof as it thinks fit.” (w.e.f. 14-9-1961).

Karnataka.-In Order XXXIII, for rule 11, substitute the following rule, namely:- “11. (1) Where the plaintiff fials in the suit or is diapaupered or where the suit is withdrawn or where part of the claim is abandoned or the suit is dismissed because the summons for the defendant to appear and answer has not been served upon him in consequence of the plaintiff’s failure to pay the requisite charges for service or the suit is so dismissed because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff or any person added as a co-plaintiff to the suit to pay the Court-fee and in case of abandonment of part of the claim the proportionate court-fee which would have been payable by the plaintiff if he had not been premitted to sue as pauper.

(2) In cases where the plaintiff is dispaupered the Court may, instead of proceeding under sub-rule (1) order the plaintiff to pay the requisite court-fee within a time to be fixed by it and in default dismiss the suit and make and order for the payment of court-fee as in sub-rule (1).

(3) Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff the Court may order the next frined to personally pay the court-fee.” {w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959].

Madras.-In Order XXXIII, for rule 11, substitute the following rule, namely:

11. Procedure where pauper fails.-

Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed-

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the Court-fees or postal charge (if any) chargeable for such service, or

(b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee and in the case of abandonment of part of the claim the proportionate Court-fee, which would have been payable by the plaintiff if he had not been permitted to sue as a pauper. In case where the plaintiff is dispaupered the Court may, instead of proceeding under the previous paragraph order the plaintiff to pay the requisite Court-fee within a time to be fixed by it and to default dismiss the suit and make an order for the payment of Court-fee as in the previous paragraph.

Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff, the Court may order the next friend to personally pay the Court-fee.”

11A. Procedure where indigent person’s suit abates

Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 1[an indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

12. State Government may apply for payment of court-fees.

The S tate Government shall have the right at any time to apply to the Court to make an order for the payment of court-fees under rule 10, rule 11 or rule 11A.

HIGH COURT AMENDMENTS

Kerala.-Same as in Madras, {w.e.f. 9-6-1959)

Madras.-In Order XXXIII,- (a) renumber rule 12 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Notice to State Government before payment.-No order for payment out of money standing to the credit of any suit instituted in forma pauperism shall be made on the application of any party except after notice duly to the Government Pleader on behalf of the Government” (w.e.f. 10-8-1955)

13. State Government to be deemed a party

All matters arising between the State Government and any party to the suit under rule 10, rule 11 rule 11A or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 47.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIII, after rule 13, insert the following rule, namely:- “13A. If any money is outstanding to the credit of a suit or appeal or other proceeding instituted, preferred or taken in forma pauperism no order for payment out of such money shall be made on application of any party except after due notice to the State Government”,(w.e.f. 15-2-1956)

1[14. Recovery of amount of court-fees.

Where an order is made under rule 10, rule 11 or rule 11 A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.

1. Subs. by Act 24 of 1942, sec. 2 for rule 14.

15. Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature

An order refusing to allow the applicant top sue as 1[an indigent person] shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right;

2[Provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow,] the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as 3[an indigent person.]

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2- 1977).

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Rajasthan.-In Order XXXIII,- (a) renumber rule 15 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Nothing in sub-rule (1) shall prevent the Court while rejecting an application under rule 5 or refusing an application under rule 7 from granting time to the applicant to pay the requisite Court-fee within a time to be fixed by the Court; and upon such payment the suit shall be deemed to have been instituted on the date on which the application was presented.”

(w.e.f. 14-8-1954)

1[15A. Grant of time for payment of court-fee.

Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and on payment of the costs referred to in 2[****] rule 15 with in that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Omitted by Act No.19 of 1988.

16. Costs

The costs of an application for permission to sue as 1[an indigent person] and of an inquiry into indigency shall be costs in the suit.

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIII, after rule 16, insert the following rules, namely:-

17. In every case, where a person is suing as a pauper, the counsel appearing for him shall file along with his vakalatnama a certificate stating the fee, if any, he has actually received and/or as stipulated to receive from the pauper or on his behalf in the suit and if, upon such a certificate the Court is satisfied that his means are such that he ought not to continue to sue as a pauper or that he is being financed by a third party, it shall be open to the Court to dispauper such a person.

18. Where the pauper is unable to engage a counsel, the Court may assign an advocate or pleader to assist him.

19. It shall be the duty of the Advocate or Pleader who may be assigned by the Court to assist a pauper to see that notices are served, summonses issued or petitions presented only on good and sufficient grounds and he shall also report to the Court every six months the progress of the suit.

20. After a person has been granted leave to sue as a pauper, no person shall take, except in pursuance of an agreement as certified to Court under rule 17 or agree to take or seek to obtain from him, any fee, profit or reward for the conduct of his business in the Court: Provided that, notwithstanding anything herein contained, the Court shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate or Pleader representing the pauper.

21. The word ‘suit’ in these rules includes ‘appeal’.”

[Vide Notification No. ROC No. 1186/56-B1, dated 9th April, 1958.]

1[17. Defence by an indigent person

Any defendant, who desire to plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIII, for rule 17, substitute the following rule, namely:-

“17. Defence by an indigent person.-Any defendant, who desire to plead a set off or counter-claim, may be allowed to set up such claim as an indigent person and the rules contained in this order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint, and if he is required to issue a third party notice, the third party notice shall also be deemed to be a plaint for the purpose of this rule.” (w.e.f. 1-10-1983)

1[18. Power of Government to provide for free legal services to indigent persons.

(1) Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.

(2) The High Court may, with previous approval of the State Government, make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to indigent persons referred to in sub-rule (1), and such rules may include the nature and extent of such legal services, the conditions under which they may be made available, the matters in respect of which, and the agencies through which, such services may be rendered.]

1. Ins. by Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIII, after rule 18, insert the following rule, namely:- “19. An indigent not to compromise suit without leave of Court.-No cause, suit or matter commenced or carried on by an indigent plaintiff or defendant shall be compromised on any account whatsoever leave first had and obtained from the Judge in Chambers or the Court.” (w.e.f. 1-10-1983)

ORDER XXXIV. SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1. Parties to suits for foreclosure sale and redemption.

Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Explanation—A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgage need not be joined in a suit to redeem a subsequent mortgage.

1[2. Preliminary decree in foreclosure suit

(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree—

(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for—

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any, awarded to him, and

(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or

(b) declaring the amount so due at that date, and

(c) directing—

(i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all incumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or subrogated to the rights, of any such mortgagees are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10 as the case may be, of Appendix D with such variations as the circumstances of the case may require.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 2.

HIGH COURT AMENDMENTS

Orissa.-Same as in Patna.

Patna.-In Order XXXIV, in rule 2, sub-rule (2), after the words “The Court may”, insert the words “of its own motion or”:

[Vide Notification No. 1-R, dated 7th January, 1936.]

1[3. Final decree in foreclosure suit

(1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree—

(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary—

(b) ordering him to re-transfer at the cost or the defendant the mortgaged property as directed in the said decree, and also, if necesssary—

(c) ordering him to put the defendant in possession of the property.

(2) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in his behalf, pass a final decree declaring that the defendant and all persons claiming through or under him or debarred from all right to redeem the mortgaged property and also, if necessary ordering the defendant to put the plaintiff in possession of the property.

(3) On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 3.

1[4. Preliminary decree in suit for sale

(1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) Power to decree sale in foreclosure suit—In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in all mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4) Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as circumstances of the case may require.]

HIGH COURT AMENDMENTS

Allahabad.- In Order XXXIV, in rule 4, in sub-rule (2), after the words “The Court may”, insert the words “of its own motion, or”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.].

Calcutta.- In Order XXXIV, in rule 4, renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively and insert the following sub-rule, namely.-

“(3) The Court may in its discretion direct in the decree for sale that if the proceeds of the sale are not sufficient to pay the mortgage debet, the mortgagor shall pay the balance personally.”

1. Subs. by Act 21 of 1929, sec. 4, for rule 4.

1[5. Final decree in suit for sale

(1) Where, on or before the day fixed or at a time before the confirmation of a sale made in pursuance of a final decree pass under sub-rule (3) of this rule, the defendant makes payment into Court of amounts due from him under sub-rule (1) of rule 4, the Court shall, on applicatl made by the defendant in this behalf, pass final or, if such decree has passed, order—

(a) ordering the plaintiff to deliver up the documents referred to in the prelimina decree, and if necessary—

(b) ordering him to transfer the mortgaged property as directed in the said decre and, also, if necessary—

(c) ordering him to put the defendant in possession of the property.

(2) Where the mortgaged property or part thereof has been sold in pursuance c a decree passed under sub-rule (3) of this rule, the Court shall not pass an order und< sub-rule (1) of this rule, unless the defendant in addition to the amount mentione in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to fiv per cent, of the amount of the purchase-money paid into Court by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order fo repayment of the amount of the purchase-money paid into Court by him, togethe with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Cour shall, on application made by the plaintiff in this behalf, pass a final decree directinj that the mortgaged property or a sufficient part thereof be sold, and that the proceed: of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XXXIV, in rule 5, in sub-rule (3), after the words “plaintiff in this behalf”, insert the words “and after notice to all parries”.

[Vide ROC No. 4955-B-1 of 1930.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 6.

6. Recovery of balance due on mortgage in suit for sale.

Where the ne proceeds of any sale held under 1[rule 5] are found insufficient to pay the amouni due to the plaintiff, the Court, on application by him may, if the balance is legall> recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

1. Subs, by Act No. 104 of 1976 for “the last preceding rule” (w.e.f. 1-2-1977).

1[7. Preliminary decree is redemption suit.

(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree—

(a) ordering that an account be taken of what was due to the defendant at the date of such decree for—

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any, awarded to him, and

(iii) other costs, charges and expenses properly incurred by him up to the date, in respect of his mortgage-security, together with interest thereon; or

(b) declaring the amount so at that date; and

(c) directing—

(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses and provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary put the plaintiff in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges expenses and interest, the defendant shall be entitled to apply for a final decree—

(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property be, sold, or

(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure of sale, as the case may be, extend due in respect of subsequent costs, charges, expenses and interest.

1. Subs. by Act 21 of 1929, sec. 4, for rule 7.

8. Final decree in redemption suit

(1) Where, final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made under by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order—

(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,—

(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and also, if necessary,—

(c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff in addition to the amount mentioned is sub-rule (1), deposits in the Court for payment to the purchaser a sum equal to five per cent, of the amount of the purchase-money paid into by the purchaser.

Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent, thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf,—

(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.

3[8A. Recovery of balance due on mortgage in suit for redemption

Where the net proceeds of any sale held under 1[rule 8] are found insufficient to pay the amount due to the defendant, the Court,2[on application by him in execution], may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.]

1. Subs. by Act No. 104 of 1976 for “the last proceeding rule” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for “on application by him” (w.e.f. 1-2-1977).

3. Ins. by Act 21 of 1929, sec. 5.

9. Decree where nothing is found due or where mortgagee has been overpaid

Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff and amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

2[10. Costs of mortgagee subsequent to decree

In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and exepenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment:

1[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Subs. by Act 21 of 1929, sec. 6, for rule 10.

1[10A. Power of Court to direct mortgagee to pay mesne profits

Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgagee to pay to the mortgagor mesne profits for the period beginning with the institution of the suit.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIV, for rule 10A, substitute the following rule, namely:-

“10A. Costs of mortgaged subsequent to decree.-In mortgage suit where under the mortgage the possession of the mortgaged property is with the mortgagee, the mortgagor may tender or deposit, before or at the time of the institution of the suit, or during the pendency of the same, the sum due on the mortgage. The tender by the mortgagor must be in writing. Notice of any such deposit shall be given by the Court to mortgagee. If the sum so tendered or deposited is in the opinion, of the Court, substantially sufficient to satisfy the mortgage, the Court shall direct the mortgagee to pay to the mortgagor, mesne profits as may be determined from the date of such tender or notice of deposit till the actual delivery of possession by the mortgagee to the mortgagor.”

[Vide Notification No. P.O. 102/77, dated 31st December, 1987.]

1[11. Payment of interest

In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:—

(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage—

(i) on the principal amount found or declared due on the mortgage,—at the rate payable on the principal, or, where such rate at the Court deems reasonable, and

(ii) [Sub-clause (ii) Omitted by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)].

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgagee-security up to the date of the preliminary decree and added to the mortgage-money,—at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent, per annum as the Court deems reasonable; and

(b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at the such rate as the Court deems reasonable.]

1. Subs. by Act 21 of 1929, sec. 6, for rule 11.

12. Sale of property subject to prior mortgage

Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

13. Application of proceeds

(1) Such proceeds shall be brought into Court and applied as follows:—

first, in payment of all expenses incident to the sale or properly incurred in any attempted sale;

secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs properly incurred in connection therewith;

thirdly, in payment of all interest due on account of the mortgage is consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made;

fourthly, in payment of the principal money due on account of that mortgage; and

lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882).

14. Suit for sale necessary for bringing mortgaged property to sale.

(1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in 1 Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (4 of 1882), has not been extended.

HIGH COURT AMENDMENTS

Bombay.-In Order XXXIV, after rule 14, insert the following rule, namely:-

“14A. Special provisions regarding a composite decree combining in itself a preliminary as well as a final decree.-(1) Notwithstanding anything hereinbefore contained, where the sale of any mortgaged property is decreed under any composite decree which combines in itself a preliminary as well as a final decree as per compromise between the parties or as required or permissible under any special law or under an order, award or adjudication which is deemed to be a decree of a Civil Court, or which is required to be executed as a decree or as if it is a decree of a Civil Court, and the judgment-debtor (mortgagor), before the day fixed in that behalf or at any time before the confirmation of the sale made in pursuance of such decree, order, award or adjudication, makes payment into Court of all amounts due from him to the decree-holder (mortgagee) on the date under the said decree, order, award or adjudication including all subsequent costs, charges, expenses and interest, and also deposits in Court for payment the purchaser a sum equal to five per cent, of the amount of the purchase money paid into Court by the purchaser, the Court shall, on application made by the judgment-debtor (mortgagor) in this behalf, set aside the sale and mark the decree, order, award or adjudication as satisfied, and pass in order-

(a) ordering the decree-holder (mortgagee) to deliver up to the judgment-debtor (mortgagor) or his nominee, all documents in the possession or power relating to the mortgaged property and if necessary.

(b) ordering him to retransfer to mortgaged property to the judgment-debtor (mortgagor) or his nominee at his cost free from the mortgage and from all incumbrances created by the decree-holder (mortgagee), or any person claiming under him, or where the decree-holder (mortgagee) claims by derived title, by those under whom he claims, and also if necessary.

(c) ordering him to put the judgment-debtor (mortgagor) or his nominee in possession of the property.

(2) Where such deposit has been made, purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into Court by him together with a sum equal to five per cent, thereof.

(3) The Court may, upon good cause shown and upon terms to be fixed by the Court, from time to time at any time before the sale is confirmed extend the time fixed for the payment of the amount due under the decree, under, award of adjudication, including all subsequent costs, charges, expenses and interest.” (w.e.f. 1-10-1983)

Kerala.-In Order XXXIV, in rule 14, omit sub-rule (2).

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

3[15. Mortgages by the deposit of title deeds and charges

1[(1)] All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882 (4 of 1882);

2[(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.]

1. Renumbered as sub-rule (1) of rule 15 by Act No. 104 of 1976, sec. 82 w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

3. Subs. by Act 21 of 1929, sec. 7, for rule 15.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIV.-

(a) renumber rule 15 as sub-rule (1) thereof, and

(b) after sub-rule (1), as so renumbered, insert the following sub-rule, namely:-

“(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that very decree.” (w.e.f. 17-1-1953)

Kerala.-For Order XXXIV, substitute the following Order, namely:-

“ORDER. XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1. Parties to suits for foreclosure, sale and redemption.-Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Explanation.-A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.

2. Decree in foreclosure suit.-(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a decree-

(a) declaring the amount due to the plaintiff on date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the suit, if any, awarded to him; and

(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security, together with interest thereon; and

(b) directing-

(i) that, if the defendant pays into Court the amount so declared due with future interest and subsequent costs as are mentioned in Rule 7 on a day within six months from the date of the decree to be fixed by the Court, the plaintiff shall deliver up to the defendant, or to such persons as he appoints, all documents f, in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at the cost of the defendant free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him or, where the plaintiff claims by derived title by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; but

(ii) that, if such payment is not made on or before the day fixed by the Court, the defendant and-all persons claiming through or under him shall be debarred from all rights to redeem the property; and also if necessary the defendant shall put the plaintiff in possession of the property.

(2) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or surrogated to the right of, any such mortgagees are joined as parties, the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be; of Appendix D with such variations as the circumstances of the case may require.

(3) On the expiry of the date fixed for payment of the amount declared due to the mortgagee, all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

3. Decree in suit for sale.~(i) In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in clauses (a) and (b) (i) of rule 2 (1) and also directing that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is declared due to the plaintiff as aforesaid, together with subsequent interest and subsequent costs, and that the balance,/if any be paid to the defendant or other persons entitled to receive the same; and that, in case the proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the property sold be paid by the defendant personally.

(ii) In a suit for foreclosure, if the plaintiff succeeds and the mortgage is an anomalous mortgage, the Court may, at the instance of the plaintiff or of any other person interested either in the mortgage money or in the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(iii) Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from or subrogated to the rights of, any such mortgagees are joined as parties the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9, From No. 10 or Form No. 11, as the case may be, of Appendix D, with such variations as the circumstances of the case may require.

2. Decree in foreclosure suit.-(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a decree-

(a) declaring the amount due to the plaintiff on date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the suit, if any, awarded to him; and

(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security, together with interest thereon; and

(b) directing-

(i) that, if the defendant pays into Court the amount so declared due with future interest and subsequent costs as are mentioned in Rule 7 on a day within six months from the date of the decree to be fixed by the Court, the plaintiff shall deliver up to the defendant, or to such persons as he appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at the cost of the defendant free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him or, where the plaintiff claims by derived title by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; but

(ii) that, if such payment is not made on or before the day fixed by the Court, the defendant and .-all persons claiming through or under him shall be debarred from all rights to redeem the property; and also if necessary the defendant shall put the plaintiff in possession of the property.

(2) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or surrogated to the right of, any such mortgagees are joined as parties, the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be; of Appendix D with such variations as the circumstances of the case may require.

(3) On the expiry of the date fixed for payment of the amount declared due to the mortgagee, all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

3. Decree in suit for sale.-(i) In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in clauses (a) and (b) (i) of rule 2 (1) and also directing that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is declared due to the plaintiff as aforesaid, together with subsequent interest and subsequent costs, and that the balance, any be paid to the defendant or other persons entitled to receive the same; and that, in case the proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the property sold be paid by the defendant personally.

(ii) In a suit for foreclosure, if the plaintiff succeeds and the mortgage is an anomalous mortgage, the Court may, at the instance of the plaintiff or of any other person interested either in the mortgage money or in the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(iii) Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from or subrogated to the rights of, any such mortgagees are joined as parties the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9, From No. 10 or Form No. 11, as the case may be, of Appendix D, with such variations as the circumstances of the case may require.

4. Decree in suit for redemption.-In a suit for redemption, if the plaintiff succeeds, the Court shall pass decree-

(a) declaring the amount due to the defendant at the date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the suit, if any, awarded to him; and

(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security, together with interest thereon; and

(b) directing-

(i) that, if the plaintiff pays into Court the amount so declared due with subsequent interest and costs as are mentioned in Rule 7, on a day within six months of the decree to be fixed by the Court, the defendants shall deliver up to the plaintiff, or to such person as he appoints, all documents in his possession or power relating to the mortgaged property, and shall if so required, re-transfer the property to the plaintiff at his cost, free from the mortgage and from all encumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall, if necessary, put the plaintiff in possession of the property; and

(ii) that, if such payment is not made on or before the date so fixed, the plaintiff shall in the case of a mortgage by conditional sale or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, be debarred from all rights to redeem the property and also, if necessary, put the defendant in possession of the mortgaged property; and that if desired by the defendant in the suit itself, in the case of any mortgage other than an usufructuary mortgage, a mortgage by conditional sale or such an anomalous mortgage as aforesaid the mortgaged property or a sufficient portion thereof be sold and the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same and that, in case the net proceeds of such sale be insufficient to pay the amount due to the defendant, the balance be paid by the plaintiff personally if the balance is legally recoverable from the plaintiff otherwise than out of the property sold.

5. Date of payment.-The Court may, upon good cause shown and upon such terms, if any, as it thinks fit, postpone the date fixed for payment under this Order from time to time.

6. Decree where nothing is found due or where mortgage has been overpaid.- Notwithstanding anything herein before contained, if it appears in a redemption suit that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

7. Costs of mortgagee subsequent to decree.-In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless the conduct of the mortgagee has been such as to disentitle him to costs, add to the mortgage money such costs of the suit and other costs, charges and expenses, as have been properly incurred by him since the decree for foreclosure, sale or redemption up to the time of actual payment.

8. Sale of property subject to prior mortgage,-Where any property the sale of which is directed under this Order is subject to a prior mortgage the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

9. Application of proceeds.-

(i) Such proceeds shall be brought into Court and applies as follows:-

First, in payment of all expenses incident to the sale or properly incurred in any attempted sale;

Secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and costs, properly incurred in connection therewith;

Thirdly, in payment of all interest due on account of the mortgage in consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made;

Fourthly, in payment of the principal money due on account of the mortgage; and

Lastly, the residue, if any, shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(ii) Nothing in this rule or in Rule 8 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882.

10. Suit for sale necessary for bringing mortgaged property to sale.-Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II rule 2.

11. Mortgages by the deposit of title-deeds and charges.-All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58 and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882.”

[Vide Kerala Gazette, Pt. III, No. 46, dated 20th November, 1990.]

ORDER XXXV. INTERPLEADER

1. Plaint in interpleader-suit

In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state-

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants.

2. Payment of thing claimed into Court

Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before the he can be entitled to any order in the suit.

3. Procedure where defendant is suing plaintiff

Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.

4. Procedure at first hearing

(1) At the first hearing the Court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.

5. Agents and tenants may not institute interpleader suits

Nothing in the Order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any person other than persons making claim through such principals or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A and C.

6. Charge for plaintiffs costs

Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

ORDER XXXVI . SPECIAL CASE

1. Power to state case for Court’s opinion

(1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question,-

(a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or

(b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or

(c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

2. Where value of subject-matter must be stated

Where the agreement is for the delivery of any property; or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.

3. Agreement to be filed and registered as suit

(1) The ag re cement if framed in accordance with the rules hereinbefore contained, may be filed 1[with an application] in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

(2) 2[The application] when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom 3[the application was presented.]

1. Ins. by Act No. of 104 of 1976 (w.e.f. 1-2-1977).

2. Subs, by Act No. 104 of 1976 for “The agreement” (w.e.f. 1-2-1977).

3. Subs, by Act No. 104 of 1976 “it was presented” (w.e.f. 1-2-1977).

4. Parties to be subject to Court’s jurisdiction

Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.

5. Hearing and disposal of case

(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit-

(a) that the agreement was duly executed by them,

(b) that they have a bona fide interest in the question stated therein, and

(c) that the same is fit to be decided,

it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow:

1[6. No appeal from a decree passed under rule 5

No appeal shall lie from a decree passed under rule 5.]

1. Ins. by Act No. of 104 of 1976 (w.e.f. 1-2-1977).

ORDER XXXVII. SUMMARY PROCEDURE

ORDER XXXVII. SUMMARY PROCEDURE 1[* * *]

1. The Words “On Negotiable Instruments” omitted by Act 104 of 1976, sec. 84 (w.e.f. 1-2-1977).

1[1. Courts and classes of suits to which the Order is to apply

(1) This Order shall apply to the following Court, namely:-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) other Courts;

Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1) the Order applies to the following classes of suits, namely:-

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,-

(i) on a written contract, or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.]

1. Subs. by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-(1) In Order XXXVII, in rule 1, for sub-rule (1), substitute the following sub-rule, namely:-

“1. This order shall apply to the following Courts, namely:-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) such other Courts as may be specifically empowered in this behalf by the High Court from time to time by a Notification in the Official Gazette: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories or suits as it deems proper and may also from time to time, as the circumstances of the use may require, by subsequent notification in the Official Gazette, further restrict, enlarge, or vary, the categories of suits to be brought under the operation of this Order as it deems proper.” (w.e.f. 1-10-1983)

Kerala.-Omit Order XXXVII. (w.e.f. 9-6-1959)

1[2. Institution of summary suits

(1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,-

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;

(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:-

“(Under Order XXXVII of the Code of Civil Procedure, 1907).”

(2) the summons of the suit shall be in Form No. 4 in Appendix B or in such other form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.]

1. Subs. by Act No. 104 of 1976 for rule 2 (w.e.f. 1-2-1977).

1[3. Procedure for the appearance of defendant

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

(2) Unless otherwise order, all summonses, notices and other judicial processes required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by pre-said letter directed to the address of the plaintiffs pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B for such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,-

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security with the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, execute the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]

1. Subs, by Act No. 104 of 1976 for rule 3 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXXVII, in rule 3, for sub-rule (3), substitute (he following sub-rule, namely:-

“(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-section (1).”

4. Power to set aside decree

After decree for the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.

5. Power to order bill, etc., to be deposited with officer of Court

In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

6. Recovery of cost of noting non-acceptance of dishonoured bill or note-

The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

7. Procedure in suits

Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.

HIGH COURT AMENDMENT

Karnataka.-After Order XXXVII, insert the following Order, namely:-

“ORDER XXXVIIA 
INTERLOCUTORY APPLICATIONS

Applications

1. An interlocutory application means an application to the Court in any suit, appeal or proceeding already instituted in such Court other than an application for execution of a decree or order or for review of judgment or for leave to appeal.

2. Except where otherwise prescribed by rules or otherwise provided by any law for the time being in force, an interlocutory application shall state only the order prayed for and shall not contain any statement of facts or argumentative matter. Every application in contravention of this rule shall be returned for amendment or rejected.

3. Every interlocutory application shall be supported by an affidavit. Where, however, the facts on which the application is based appear from the records in Court or relate to any act or conduct of the applicant’s pleader himself, the Court may permit memorandum of facts signed by the applicant’s pleader to be filed instead of an affidavit.

4. Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise prescribed by rule or ordered by Court, be proved by affidavit, but the Judge may in any case direct evidence to be given orally, and thereupon the evidence shall be recorded and exhibits marked in the same manner as in a suit.” (w.e.f. 30-3-1967)

ORDER XXXVIII. ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before judgment

1. Where defendant may be called upon to furnish security for appearance-

Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,-

(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him-

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court his property or any part thereof, or

(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security, for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer enstrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

2. Security

(1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

3. Procedure on application by surety to be discharged

(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

(2) On such application being made, the Court shall summon the defendant to appear or, if it thinks fit may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.

4. Procedure where defendant fails to furnish security or find fresh security

Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:

Provided also that no person shall be detained in prison under this rule after he has complied with such order.

HIGH COURT AMENDMENT

Kerala.-In Order XXXVIII,-

(a) re-number rule 4 as sub-rule (1) thereof; and

(b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) The provisions of Order XXI, rule 39 as to allowances payable for the subsistence of judgment-debtor shall apply to all defendants arrested under this Order.”

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Attachment before judgment

5. Where defendant may be called upon to furnish security for production of property

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the j urisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

1[(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.]

1. Ins. by Act No. 104 of 1976, sec. 85 (w.e.f. 1-2-1977).

6. Attachment where cause not shown or security not furnished

(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause of furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

HIGH COURT AMENDMENT

Bombay.-In Order XXXVIII, in rule 6, in sub-rule (2), after the words “the required security”, insert the words “or gives an undertaking to the Court to do or not to do a thing”, (w.e.f. 1-10-1983)

7. Mode of making attachment

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

1[8. Adjudication of claim to property attached before judgment

Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudicated of claims to property attached in execution of a decree for the payment of money.]

1. Subs. by Act No. 104 of 1976 for rule 8 (w.e.f. 1-2-1977).

9. Removal of attachment when security furnished or suit dismissed

Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.

10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

11. Property attached before judgment not to be re-attached in execution of decree

Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.

1[11A. Provisions applicable to attachment

(1) The provisions of this Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Madras.-In Order XXXIX, after Rule 11A, insert the following rule, namely:-

“11B. Order of attachment to be communicated to the registering officer.-Any order of attachment passed under rule 5 or 6 of this order and any order raising the attachment passed under rule 9 of this order shall be communicated to the registering officer within the local limits of whose jurisdictions the whole or any part of the immovable property completed in such order, is situate.”

[Vide Tamil Nadu Government Gazette, Pt. III, Sec. 2, dated 15th July, 1987.]

12. Agricultural produce not attachable before judgment

Nothing in this Order shall be deemed to authorize the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

1[13. Small Cause Court not to attach immovable property

Nothing in this Order shall be deemed to empower any Court of Small Causes to make order for the attachment of immovable property.]

1. Ins. by Act 1 of 1926, sec. 4.

HIGH COURT AMENDMENT

Kerala.-In Order XXXVIII, in rule 13, for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause jurisdiction”.

[Vide Notification No, Bl-3312/58, dated 9th June, 1959.]

ORDER XXXIX. TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunctions

1. Cases in which temporary injunction may be granted

1Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 2[defrauding] his creditors,

3[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]

the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 3[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

4[* * *]

1. Amendment of Order XXXIX Rule I made by Act No. 46 of 1999, section 30 has been repealed by Act No. 22 of 2002, section 16 (w.e.f. 1-7-2002).

2. Subs, by Act No. 104 of 1976, for “defraud” (w.e.f. 1-2-1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. Sub-rule (2) ins. by Act 46 of 1999, sec. 30 and section 30 of the Act 46 of 1999, by which it was so inserted, has been omitted by Act 22 of 2002, sec. 16 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-For Order XXXIX, for rule 1, substitute the following rule, namely:-

“1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors; or

(c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff,

the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale, removal or disposition of the property, or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.” (w.e.f. 26-7-1956).

Calcutta.-In Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof; and

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

“(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil person for a term not exceeding six months, unless in the meantime the Court directs his release. (3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and, out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto.” (w.e.f. 3-2-1933)

Gauhati.-Same as in Calcutta.

Kerala.-Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof;

(b) in sub-rule (1) as so renumbered, in clause (a), after the words “wrongfully sold”, insert the words “or delivered”;

(c) after sub-rule (1) as so renumbered, inset the following sub-rule, namely:-

“(2) In case of disobedience of any order passed under sub-rule (1) the Court granting injunction may proceed against the person guilty of such disobedience under sub-rules (3) and (4) of rule 2 of this Order.” (w.e.f. 9-6-1959)

Orissa.-Same as in Pama.

Patna.-In Order XXXIX, in rule 1, at the end, insert the following provisos, namely:- “Provided that no such temporary injunction shall be granted if it would contravene the provisions of section 56 of the Specific Relief Act (Act 1 of 1877): Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree.”

2. Injunction to restrain repetition or continuance of breach

(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

1[* * * ]

1. Sub-rules (3) and (4) omitted by Act No. 104 of 1976, sec. 86 (w.e.f, 1-2-1977).

STATE AMENDMENTS

Madhya Pradesh.-In Order 39, rule 2, in sub-rule (2), insert the following proviso:-

“Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38

(b) to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or Corporation owned or controlled by the State Government; or

(c) to stay, any disciplinary proceeding, pending or intended or, the effect of any adverse entry against any, person appointed to public service and post in connection with the affairs of the State including any employee of the company owned or controlled by the State Government; or

(d) to restrain any election; or

(e) to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injuction granted in contraven- tion of these provisions shall be void.” [M.P. Act 29 of 1984].

Uttar Pradesh.-In rule 2, sub-rule (2), interest the following proviso:- “Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38 and section41 of the Specific Relief Act, 1963 (47 of 1963), or

(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or

(c) to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or

(d) to affect the internal management or affairs of any educational institution including a University, or a Society, or

(e) to restrain any election, or

(f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or

(g) to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or

(h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being inforce;

and any order for injunction granted in contravention of these provisions shall be void”.

[U.P. Act 57 of 1976 amended by Notification dated 3.10.1981 ].

1[2A. Consequence of disobedience or breach of injunction

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Patna.-In Order XXXIX, in rule 2A, in sub-rule (1), after the words and figure “rule 2” and before the words “or breach of”, insert the words and figures “or section 151”.

[Vide Notification No. 243/R, dated 3rd August, 1979.]

3. Before granting injunction, Court to direct notice to opposite party

The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

1[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIX, after rule 3, insert the following rules, namely:-

“3 A. In any case where a temporary injunction is granted, the Court may, at the time of the order, or at any time during the pendency of the injunction, call upon the applicant to furnish security for the amount of damages that the Court may determine as payable by the party obtaining the injunction to the other party as compensation for any injury or loss that may be sustained by the letter by reason of the injunction.

3B. The Court shall, on application made after the disposal of the suit, determine the amount payable under rule 3A and make an order awarding it to the applicant.”

1[3A. Court to dispose of application for injunction within thirty days.

Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXXIX, omit rule 3A.

[Vide Notification No. 103/IV-L-360, dated 3rd February, 1981 (w.e.f. 3-10-1981).]

4. Order for injunction may be discharged, varied or set aside

Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

1[Provided that if in an application for temporary injunction or in any affidavit support such application a part has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused under hardship to that party.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

STATE AMENDMENTS

Madhya Pradesh.-In Rule 4:-

(i) after the words “by the Court”, inserted the words “for reasons to be recorded, either on its own motion or”; and

(ii) at the end, add the following proviso:-

“Provided also that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Court, it shall set aside the order of injunction.” [M.P. Act 29 of 1984].

Uttar Pradesh.-Same as that of Madhya Pradesh except for the word “delaying” substitute “dilating” in the proviso. [U.P. Act 57 of 1976].

5. Injunction to corporation binding on its officer

An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

Interlocutory orders

6. Power to order interim sale

The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject-matter of such suit or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.

7. Detention, preservation, inspection, etc., of subject-matter of suit.

(1) the Court may, on the application of any party to a suit, and on such terms as it thinks fit,-

(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to person authorized to enter under this rule.

HIGH COURT AMENDMENT

Punjab, Haryana and Chandigarh.-In Order XXXIX, in rule 7, in sub-rule (1), for clause (a), substitute the following clause, namely:-

“(a) make an order for detention, preservation or inspection of any relevant documents or other evidence or of any property which is the subject-matter of such suit or as to which any question may arise therein.” (w.e.f. 11-4-1975)

8. Application for such orders to be after notice

(1) An application by the plaintiff for an order under rule 6 or rule may be made1[****] at any time after institution of the suit.

(2) An application by the defendant for a like order may be made 2[***] at any time after appearance.

3[(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court shall except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.]

1. The words “after notice to the defendant” omitted by Act No. 104 of 1976 (w.e.f. 1977).

2. The words “after notice to the plaintiff omitted by Act No. 104 of 1976 (w.e.f. 1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977)..

9. When party may be put in immediate possession of land the subject-matter of suit

Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure;

and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

10. Deposit of money, etc. in Court

Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.

HIGH COURT AMENDMENT

Bombay.-In Order XXXIX, after rule 10, insert the following rule, namely:-

“11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court.- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any defaults in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the defaults or contravention or breach is committed by the defendant or the opponent.

(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court:

Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed.” (w.e.f. 1-10-1983)

ORDER XL. APPOINTMENT OF RECEIVERS

1. Appointment of receivers

(1) Where it appears to the Court to be just and convenient, the Court may by order-

(a) appointment a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

HIGH COURT AMENDMENTS

Allahabad.-In Order XL, in rule (1), in sub-rule (2), after the words “any person”, insert a comma and the words “not being a party to the suit,”.

[Vide Notification No. 2875/35(a)-5(2), dated 10th July, 1943].

Karnataka.-Same as in Allahabad.

2. Remuneration

The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.

3. Duties

Every receiver so appointed shall-

(a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

(b) submit his accounts at such periods and in such form as the Court directs;

(c) pay the amount due from him as the Court directs; and

(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with the following modifications:-

(i) in clause (a), for the words “in the movable property”, substitute the words “in such form and”.

(ii) in clause (b), for the words “at such periods and in such forms as”, substitute the words “at such time and in such form as the Court may direct or”, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the modification that in clause (a), for the word “movable”; substitute the word “immovable”.

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XL, in rule 3, for clauses (a) and {b), substitute the following clauses, namely:-

“(a) unless the Court otherwise orders, furnish security in the movable property for such amount as the Court thinks fit duly to account for what he shall receive in respect of the property of which he is appointed a receiver.

(b) submit his accounts at such periods and in such forms as may be prescribed.”

[Vide P Dis. No. 577 of 1944.]

4. Enforcement of receiver’s duties

Where a receiver-

(a) fails to submit his accounts at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or

(c) occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XL, for rule 4, substitute the following rule, namely:-

“4. Enforcement of receiver’s duties.-(i) If a receiver fails to submit his account at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time not beyond three years from the date of his discharge by the Court, make an inquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such inquiry. Notice of the inquiry shall be given by registered post prepaid for acknowledgment to the surety, if any, for the Receiver, but the cost of his appearance shall be borne by the surety himself, unless the Court otherwise directs

Provided that the Court may, where the account is disputed by the parties and is of a complicated nature, or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all such cases, the Court shall state in writing the reasons for the reference.

(3) If the Receiver fails to pay any amount which he has been ordered to pay under sub-rule (2) of this rule, within the period fixed in the order, the Court may direct such amount to be recovered either on the security (if any) furnished by him under Rule 3, or by attachment and sale of his property, or, if the property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him, and shall pay the balance (if any) of the sale proceeds to the Receiver.” (w.e.f 1-10-1983)

Karnataka.-Same as in Madras with the following modification:-

In sub-rule (1), for the words “in the form ordered”, substitute the words “in the manner ordered”, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the addition of the following marginal note to the rule:-

“Enforcement of receiver’s duties”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XL, for rule 4, substitute the following rule 4, namely:-

“4. (1) If a receiver fails to submit his accounts at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver, but the cost of his appearance shall be borne by the surety himself unless the Court otherwise directs:

Provided that the Court may, where the amount is disputed by the parties and is of a complicated nature or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the receiver, refer the parties to a suit. In all such cases the Court shall state in writing its reasons for the reference.

(3) If the receiver fails to pay, any amount which he has been ordered to pay under sub-rule (2) of this rule within the period fixed in the order, the Court may direct such amount to be recovered either from the security (if any) furnished by him under rule 3, or by attachment and sale of his property, or, if his property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him and shall pay the balance (if any) of the sale proceeds to the receiver.”

[Vide P Dis. No. 60 of 1933.]

5. When Collector may be appointed receiver

Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society, registered under an appropriate statute or to a member of any such co-operative society, and the Court considers that the interests of those concerned will be promoted by the management thereof by an officer of the Co-operative Department, the Court may with the consent of such officer, appoint him to be receiver of such property.” (w.e.f. 8-1-1987)

Madras.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society registered under the Madras Co-operative Societies Act or to member of such co-operative society, and the Court considers that the interest of those concerned will be promoted by the management of an officer of the Co-operative Department, the Court may, with the consent of the officer, appoint him to be receiver of such property.”

Andhra Pradesh.-In Order XL, after Yule 6, insert the following rule, namely:-

“7. Where a receiver had been appointed by a Court under rule 1 of this Order, no such receiver may be sued by any person whether he is party to the said suit or not, except with the leave of the Court appointing the receiver or successor Court on an application made in this behalf and the notice of which is served upon the receiver and all other persons who may, in the opinion of the Court be interested in the subject-matter of the suit”

Bombay.-After Order XL, insert the following Order, namely:-

“ORDER XLA
CAVEAT RULES

“1. Every Caveat under section 148A shall be signed by the Caveator or his Advocate and shall be in the form prescribed.

2. Every Caveat shall be presented by the party in person or by his Advocate to the Court or to the Officer authorised to receiver the Caveat. Where the Caveator is represented by an Advocate his Vakalatnama shall accompany the Caveat. When an Advocate instructed by a party to act or appear in a manner has not been able to secure a Vakalatnama in the prescribed form duly signed by the client, he may file written statement signed by him stating that he has instructions from or on behalf of his client to act or appear in the matter and also undertaking to file within a week a Vakalatnama in the prescribed form duly signed by the party.

3. The Caveat presented under rule 2 shall be registered in a Caveat Register in ; Form given below. Before an application for any relief is made to the Court in any proceedings, it shall bear an endorsement from the office of the Court whether a Caveat has or has not been filed.

4. (1) A copy of the Caveat shall be served along with the notice required to be served under section 148A (2).

(2) On receipt of the notice of the Caveat, the applicant or his Advocate, shall intimate to the Caveator or his Advocate, the expenses for furnishing the copies and request him to collect the copies on payment of the said expenses. The, said expenses-should be at the rate of 25 paise per folio of 100 words inclusive of cost of paper.

5. Every application for any relief in a proceeding should be supported by a statement on oath of the applicant stating that no notice under section 148A (2) is received by him or if received whether the applicant has furnished the copies of the application together with the copies of the paper or documents which have been filed or may be filed in support of the application to the Caveator as required by section 148A (4).

6. A notice under section 142A (3) may be served on the Caveator or his Advocate personally or by post Under Certificate of Posting. The notice sent Under Certificate of Posting at the address furnished by the Caveator shall be deemed to be sufficient service on him.

7. Where it appears to the Court, that the object of granting ad interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant ad Interim relief of the application of the applicant till further orders after giving the Caveator an opportunity of being heard.

FORM OF CAVEAT

In the Court of……………………………………………..At…………………………………………………….
Suit/Petition/Appeal No…………………………………………….19………/20 ……

In the matter of :

Caveat under section 148A of the Code of Civil Procedure

………………………………………………………………………Caveator.

Pay that no orders be passed without due notice under section 148A of the Code of Civil Procedure to the Caveator above named in any application for ……………………………(State in short reliefs to be prayed for) in Suit Petition/Appeal No……………………of 19……/20……of this Court (or in Suit/Petition/Appeal likely to be filed in this Court) wherein………………… is/may be Plaintiff/Petitioner/Appellant and…………………is/may be the Defendant/Respondent.

The Caveator’s address for service is……………………………………………………………….

The Caveator undertakes to the Court to give notice by Registered Post A.D. to…………………the Plaintiff/Petitioner/Appellant above mentioned, at the following address………………………

Caveator…………….

REGISTER OF CAVEAT

(O. XL-A, rule 3

In the Court of the…… of …… at Register of Caveat in the year, 19…./20….

Srl No.Dt. of CaveatName of Caveator and his address for serviceNature of proceeding anticipated by caveat or and its number if same is filedName of plaintiff Applicant in the proceeding in column No. 4Name of defendant Respondent the pro­ceeding in column No. 4Date and number of proceeding filed as anticip­ated by CaveatorDate of notice served on CaveatorRmks
123456789

ORDER XLI. APPEALS FROM ORIGINAL DECREES

ORDER XLI. APPEALS FROM ORIGINAL DECREES

1. Form of appeal. What to accompany memorandum

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the 1[judgment]:

2[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court dispense with the filing of more than one copy of the judgment.]

(2) Contents of memorandum—The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

2[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court mav allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

1. Subs. by Act No. 46 of 1999 section 31 for certain words (w.e.f. 1-7-2002).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 1,-

(1) in sub-rule (1), after the proviso, insert the following Explanation, namely:-

“Explanation.-The copy of the decree referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6-A.”

[Vide Notification. No. 345-VIId-134, dated 8th August, 1994 (w.e.f. 22-10-1994).]

(2) in sub-rule (2), insert the following proviso, namely;-

“Provided that the Court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, subject to the copy being filed subsequently within the time granted by the Court.” (w.e.f. 13-12-1969)

(3) Omit sub-rule (3),

[Vide Notification. No. 552/VIId-184 dated 30th October, 1993 published in Uttar Pradesh Gazette. Pt 2, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-In Order XLI, for rule 1, substitute the following rule, namely:-

“(1) Every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by such number of copies of judgment as may be required by the Rules or Notifications issued by the High Court and (unless the Appellate Court dispenses with the filing of the decree or judgment or both for the time being) the decree drawn pursuant to the said judgment,” (w.e.f. 2-8-1988)

Bombay.-In Order XLI, for rule 1, substitute the following rule, namely:-

“1. Form of appeal, what to accompany memorandum.-(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from-and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

Provided that where two or more suits have been tried together and a common judgment has been delivered, therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate court may dispense with the filing of more than one copy of the judgment.

*[Explanation.-The copy of the decree-referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6A],

(2) Contents of memorandum.-The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit:

Provided that the Court may dispense with the deposit or security where it deems fit to do so for sufficient cause.

(4) The appellant shall file along with the memorandum of appeal as many copies thereof on plain paper as there are respondents for being served on the respondents along with the notice of appeal:

Provided that the Court in its discretion may permit the appellant to file the necessary number of copies of the memorandum of appeal after the appeal is admitted, within such time as the Court may grant in this behalf.” (w.e.f. 1-10-1983) and *(w.e.f. 9-12-1987)

Delhi.-Same as in Punjab, (w.e.f. 31-10-1966)

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab, (w.e.f. 25-1-1971)

Karnataka.-(i) In Order XLI, in rule 1, in sub-rule (1), at the end, insert the proviso as in Madras, item (iii);

(ii) in sub-rule (2) at the end, insert the following, namely:-

“The memorandum shall also contain a statement of the amount or value of the subject-matter in dispute in the Court of first instance and in the appeal and a statement of the amount of Court-fee paid or payable on the appeal together with the provisions of law under which it is calculated”.

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.] ..

(iii) insert the following sub-rule, namely:-

(3) “When an appeal is presented after the period of limitation prescribed therefore it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period, and the Court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order or on the ground that it is not satisfied as to the sufficiency of the reason for the delay) until notice has been given to the respondent and his objections, if any, are heard.”

Kerala.-Same as in Madras items (ii), (iii) and (v) with the following modifications:-

(i) in item (ii), insert the following marginal note:-

“Copy of Judgment to be printed for appeal”;

(ii) in item (iii), insert the following marginal note:-

“Power to admit appeal subject to production of copy of decree or order under special or local Act.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, in rule 1,-

(i) in sub-rule (1), before, the word “copy”, insert the word “certified”, (w.e.f,

25-12-1963) (ii) to sub-rule (1), insert the following words, namely:-

“The copy of the judgment shall be printed copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for, for the purpose of appeal.”

[Vide GO No. 933, Home (Judl), dated 3rd May, 1917.]

(iii) in sub-rule {!), insert the following proviso, namely:-

“Provided that, in appeals from decrees or order under any special or local Act to which the provisions or Parts II and III of the Limitation Act IX of 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court.”

[Vide Dis. No, 2135 of 1918.]

(iv) in sub-rule (1), insert the following further proviso and Explanation, namely: –

“Provided further that when the decree appealed from is a final decree in partition suit with schedules attached thereto, the Appellate Court may dispense with the production of the copy of the decree, if the appellant filed a certified copy of the judgment appealed against and produces also a certificate from the Lower Court as to the value of the subject-matter of the proposed appeal.”

[Vide P Dis. No. 97 of 1963, dated 20th March, 1963.]

“Explanation.-The words ‘Appellate Court’ in sub-rule (1) be deemed to include the Registrar of the High Court, where the appeal is preferred to the High Court.” (w.e.f. 25-12-1963) (v) in sub-rule (2), at the end, insert the following words, namely:-

“The memorandum shall also contain a statement of the valuation of The appeal for the purposes of the Court-fees Act.”

[Vide Dis. No. 2057 of 1917.]

Orissa.-Same as in Patna.

Patna,-(i) In Order XLI, in rule 1, in sub-rule (1), insert the following proviso, namely:-

“Provided that when the decree appealed from is a final decree in a partition suit and embodies the allotment papers, the Appellate Court may accept a copy of the decree containing only a portion of the allotment papers, provided further that the Appellate Court may, subsequently, on the application of the respondent require a copy of the remaining or any further portion of the allotment papers to be filed by the appellant.”

(ii) insert the following as second proviso, namely:-

“Provided further that, in appeals from decrees or orders under any special or local Act to which the provisions of Parts II and III of the Limitation Act, 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court” (w.e.f. 5-4-1961).

Punjab.-In Order XLI, in rule (1), in sub-rule (1), after the proviso, insert the following further proviso, namely:-

“Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct.”

Rajasthan.-In Order XLI, in rule 1, insert the following proviso, namely:-

“Provided that when me decree appealed from is a final decree in a partition suit, the Appellate Court may dispense with the production of the copy of the decree if the appellant filed a certified copy of the judgment appealed against.”

2. Grounds which may be taken in appeal

The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court in deciding the appeal,’ shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

3. Rejection or amendment of memorandum

(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 3, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Where the memorandum of appeal is not drawn up in the manner in hereinbefore prescribed, or accompanied by the copies mentioned in rule 1(1),.it may be rejected, or where the memorandum of appeal is not drawn up in the manner prescribed, it may be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amendment then and there.”

[Vide Notification No. 2058/35{a), dated 17th June, 1916.]

1[3A. Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.

Where there are more plaintiff or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

Stay of proceedings and of execution

5. Stay by Appellate Court

(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

1[Explanation—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]

(2) Stay by Court which passed the decree—Where an application is made for Stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied—

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) 2[Subject to the provisions of sub-rule (3)], the Court may make an ex pane order for stay of execution pending the hearing of the application.

3[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 5, for sub-rule (5), substitute the following sub-rule, namely:-

“(5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit.”

[Vide Notification. No. 552/VII-d-134 dated 3rd October 1993, published in Uttar Pradesh Gazette Pt. II, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XLI, in rule 5, in sub-rule (2), for the words “but the Appellate Court may for sufficient cause order stay of execution of such decree”, substitute the words “but the Appellate Court may subject to sub-rule (3) of rule 6 of this Order, for sufficient cause order stay of execution of such decree”.

[Vide Notification No. 6874-G, dated 5th October, 1948.]

Karnataka.-In Order XLI, in rule 5, in sub-rule (1), at the end, insert the following words, namely:-

“and may, when the appeal is against a preliminary decree, stay the making of a final decree in pursuance of the said preliminary decree or the execution of any such final decree if already made or when made or stay all or any of the further proceedings to be taken pursuant to such preliminary decree.

Nothing herein contained shall affect or limit the inherent power of the Court to stay other proceedings either before it or any Court subordinate to it in appropriate cases.”

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-(a) Same as in Madras.

(b) in sub-rule (3), insert the following proviso, namely:-

“Provided that in the case of decree charging immovable properties the Appellate Court may in its discretion dispense with such security in whole or in part.”

[Vide Notification No. Bl-312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 5,-

(a) in sub-rule {!}, after the words “but the Appellate Court may for sufficient cause order stay of execution of such decree”, insert the words “on such terms and conditions as the court may deem fit”.

(b) in sub-rule (1), at the end, delete full stop and insert the following words, namely:- “and may, when the appeal is against a preliminary decree stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree, if already made.”

[Vide P Dis. No. 164 of 1932.]

6. Security in case of order for execution of decree appealed from

(1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

HIGH COURT AMENDMENT

Calcutta.-In Order XLI, in rule 6, after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where no such application has been presented to the Court which made the order as application for stay of the sale shall not be entertained by the appellate Court.” (w.e.f. 5-10-1948)

7. [No security to be required from the Government or a public officer in certain cases. Rep. by the A.O. 1937.]

8. Exercise of powers in appeal from order made in execution of decree

The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

Procedure on admission of appeal

1[9. Registry of memorandum of appeal

(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.]

1. Subs. by Act No. 46 of 1999.section 31 (w.e.f. 1-7-2002).

10. Appellate Court may require appellant to furnish security for costs

(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of India—Provided that the Court shall demand such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within India other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 10, in sub-rule (1), in the proviso, for the word “India” occurring for the second time substitute the words “the State”.

[Vide Notification No. 43/vii-d-29, dated 1st June, 1957.]

11. Power to dismiss appeal without sending notice to Lower Court

1[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal.]

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

2[(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.]

1. Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

2. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

1[11 A. Time within which hearing under rule 11 should be concluded

Every appeal shall be heard under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

12. Day for hearing appeal

(1) Unless the Appellate Court dismisses the . appeal under rule 11, it should fix a day for hearing the appeal.

1[(2) Such day shall be fixed with reference to the current business of the Court.]

1. Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

1[13. Omitted.]

1. Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

14. Publication and service of notice of day for hearing appeal

(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served—Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

1(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.

(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 14, in sub-rule (1), for the words “or on his pleader in Appellate Court”, substitute the following words, namely:-

“or on his pleader competent to service the notice on his behalf”.

[Vide Notification No. 714-IVH-36A, dated 21st March, 1981.]

Andhra Pradesh.-In Order XLI, rule 14, in sub-rule (1), insert the following proviso, namely:-

“Provided that the Appellate Court may dispense with service of nonce on respondents who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court.”

Calcutta.-In Order XLI, in rule 14, after sub-rule. (2), insert the following sub-rule, namely:-

“(3) It shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on its own motion, or ex parte, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court or on the legal representatives of any such respondent: Provided that-

(a) The Court may require notice of the appeal to be published in any newspaper or newspapers as it may direct.

(b) No such order shall percolate any such respondent or legal representative from appearing to contest the appeal.”

Delhi.-Same as in Punjab.

Guahati.-Same as in Calcutta.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, after rule 14, insert the following rule, namely:-

“14A. Substitution of letter for notice.-(i) The Court may, notwithstanding anything hereinbefore contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, in the opinion of the Court of a rank entitling him to such mark of consideration.”

Karnataka.-Same as in Andhra Pradesh.

Madras.-In Order XLI, in rule 14, in sub-rule (1), insert the following proviso, namely:-

“Provided that the Appellate Court may dispense with service of notice on respondent who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court.”

[Vide Notification No. 221 of 1976, published in Tamil Nadu Gazette, Pt. III, Sec. 2, dated 17th November, 1976.]

Orissa.-In Order XLI, in rule 14, after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where the passing of an ex parte interlocutory order has, in the opinion of the Court, the effect of causing delay in any proceeding pending in a subordinate Court, notice shall issue simultaneously both to the respondent and to his pleader in the said proceeding in the subordinate Court, fixing a short date for return of the service. If the pleader has been served with the notice but the notice to the respondent is returned unnerved and no appearance is made on his behalf the Appellate Court may in its discretion declare the service on the pleader to be sufficient service on the respondent and shall intimate the same to the respondent by registered post at the cost of the appellant.” (w.e.f. 14-5-4984)

Punjab.-In Order XIL, in rule 14,-

(i) in sub-rule (2), insert the following proviso, namely:-

“Provided that the notice shall be served on the Advocate of the party who appeared in the subordinate Court where the matter is still pending.”

[Vide Notification. No. G.S.R. 39 C.A. 5/1908/S. 12257 (w.e.f. 11-4-1975).]

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) it shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of , or at any proceedings subsequent to the decree of that Court, or on the legal representatives of any such respondent: Provided that-

(a) that Court may require notice of the appeal to be published in any newspapers or in such other manner as it may direct;

(b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal.”

(iii) after sub-rule (3), insert the following sub-rules, namely:-

“(4) Where the respondent or any respondents has migrated to Pakistan and he cannot be served in the ordinary way, if the appeal has arisen out of a suit to obtain relief respecting, or compensation for wrong to immovable property, the notice shall be served on the Custodian of Evacuee Property, Punjab or Delhi, as the case may be. In all other cases, the notice shall be served on such Custodian and a copy of the notice shall be sent, by registered post, to the Secretary-General to the Pakistan Government.

(5) The provisions of sub-rule (4) shall mutatis mutandis apply to appellants, who have migrated to Pakistan and who cannot be served in the ordinary way.” (iv) after sub-rule (5) insert the following sub-rule, namely:-

“(6) Every notice of appeal to a respondent other than a respondent stated to be pro forma shall be accompanied by a copy of the memorandum of appeal or, if so permitted, by a concise statement.”

Kerala.-In Order XIL, after rule 14, insert the following rule, namely:-

“14A. Substitution of letter for notice.-(1) The Court may, notwithstanding anything herein before contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a notice and subject to the provisions of sub-rule (3), shall be treated in all respect as a notice.

(3) A letter so substituted may be sent to the respondent by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the respondent has an agent empowered to accept service, the letter may be delivered or sent to such agent.” (w.e.f. 16-7-1963).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 14, insert the following rule, namely:-

“14A. The Appellate Court may, in its discretion, dispense with the service of notice herein before required on a respondent, or on the legal representatives of a deceased respondent, in a case where such respondent did not appear, either at any stage of the proceedings in the Court whose decree is appealed from or in any proceedings subsequent to die decree of that Court and no relief is claimed against such opposite party or respondent or his legal representative either in the original case or appeal.”

115. Contents of Notice.

1. Rep. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) sec. 31 (w.e.f. 1-7-2002).]

HIGH COURT AMENDMENTS

Bombay.-In Order XLI, after rule 15, insert the following rule, namely:-

“15A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rules or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit.”

Madhya Pradesh.-In Order XLI, after rule 15, insert the following rule, namely:-

“15A- Failure to take necessary steps after admission of an appeal in the High Court.- Where on the admission of an appeal in the High Court, the Rules of the High Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where, after due service of a notice intimating the steps to be taken and the date before which they mush be taken, the appellant fails to take such steps within the prescribed time, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order, as it thinks fit.” (w.e.f. 16-9-1960).

Procedure on hearing

16. Right to begin

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall he heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 16, in sub-rule (1), for the words “On the day fixed, or on any other day to which the hearing may be adjourned”, substitute the words “When the appeal is called on for hearing”.

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

17. Dismissal of appeal for appellants default

(1) Where on the day fixed, or on any other day which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

1[Explanatipn—Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]

(2) Hearing appeal ex parte—Where the appellant appears and the respondent does not appear the appeal shall be heard exparte,

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 17, in sub-rule (1), omit the words “on the day fixed, or on any other day to which the hearing may be adjourned” .

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

118. Dismissal of appeal where notice served in consequence of appellant’s failure to deposit cost.

1. Omitted by The Code of civil procedure (Amendment) Act, 1999 (Act No. 46 of 1999), section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Bombay.-In Order XLI, after rule 18, insert the following rule, namely:-

“18A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rule or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit.” (w.e.f. 1-10-1983)

19. Re-admission of appeal dismissed for default

Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 1[***], the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

1. Words “or rule 18” omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, for rule 19, substitute the following rule, namely:-

“19. Re-admission of appeal dismissed for default.-Where an appeal is dismissed under rule 11, sub-rule (2), or rule ISA or rule 17 or rule 18, the appellant may apply to the Appellate Court for re admission of the appeal and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or in taking the necessary steps in the prosecution of the appeal or from depositing the sum so required the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.” (w.e.f. 1-10-1983)

Delhi.-Same as in Madras.

Gujarat.-Same as in Madras.

Himachal Pradesh.-Same as in Madras. MA

Karnataka.-Same as in Madras.

Kerala.-Same as in Madras.

Madras.-In Order XLI,-

(a) renumber rule 19, as sub-rule (1) thereof, and

(b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) The provisions of section 5, Limitation Act, 1908, shall apply to applications under sub-rule (1).”

Madhya Pradesh.-After the words and figures “sub-rule (2)”, insert the words and figures “or rule ISA”, (w.e.f. 16-9-1960)

Punjab-Same as that of Madras.

20. Power to adjourn hearing and direct persons appearing interested to be made respondents

1[(1)] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

2[(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.]

1. Rule 20 re-numbered as sub-ruled) thereof by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 976 (w.e.f. 1-2-977).

21. Re-hearing on application of respondent against whom ex parte decree made

Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellant Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya

Pradesh. Gujarat.-Same as in Madhya Pradesh. (w.e.f. 17-8-1961)

Karnataka.-Same as in Madhya Pradesh. (w.e.f. 5-11-1959)

Kerala.-Same as in Madhya Pradesh. {w.e.f. 9-4-1959)

Madhya Pradesh.-In Order XLI,-

(a) re-number rule 21 as sub-rule (1) thereof; and

(b) after sub-rule (1), as so renumbered, insert the following sub-rule, namely:-

“(2) The provision of section 5 of the Indian Limitation Act, IX of 1908 (now section 5 of Limitation Act, 1963) shall apply to applications under sub-rule (1).” (w.e.f. 16-9-1960)

Madras.-Same as in Madhya Pradesh.

22. Upon hearing respondent may object to decree as if he had preferred a separate appeal

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 1[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

[Explanation—A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]

(2) Form of objection and provisions applicable thereto—Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

2[(3) Omitted]

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.

1. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

2. Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 22, in sub-rule (1), after the word “hearing” and before the word “the” insert the words “or appearance”.

[Vide Notification No. 348/VII-d.168, dated 8th August, 1999 (w.e.f. 22-10-1994}.]

23. Remand of case by Appellate Court

Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 23,-

(a) after the words “and the decree is reversed in appeal”, insert the words “or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it”.

(b) omit the words “the Appellate Court” occurring thereafter and omit also the words “if it thinks fit”, occurring after the word “may”, (w.e.f. 1-6-1957)

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XLI, for rule 23, substitute the following rule, namely:-

“23. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or .setting aside the decree under appeal considers it necessary in the interests of Justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of ‘civil suits, and proceed to determine the suit; the evidence, if any, recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand.” (w.e.f. 5-11-1959)

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XLI, in rule 23,-

(a) after the words “the decree is reversed in appeal”, insert the words “or where the Appellate Court, in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case”; and

(b) omit the words “if it thinks fit,” occurring after the words “the Appellate Court may”.

Rajasthan.-In Order XLI, for rule 23, substitute the following rule, namely:-

“23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with direction to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.” (w.e.f. 11-3-1965)

1[23A. Remand in other cases

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

24. Where evidence on record sufficient, Appellate Court may determine case finally

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor 1[within such time as may be fixed by the Appellate Court or extended by it from time to time.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

26. Finding and evidence to be put on record. Objections to finding

(1) Such evidence and findings shall form part of the record in the suit; and either party may within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal—After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

1[26A. Order of remand to mention date of next hearing

Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

27. Production of additional evidence in Appellate Court

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

1[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

28. Mode of taking additional evidence

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

29. Points to be defined and recorded

Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

Judgment in appeal

30. Judgment when and where pronounced

1[(1)] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

2[(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole j udgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment in pronounced.]

1. Rule 30 re-numbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

31. Contents, date and signature of judgment

The judgment of the Appellate Court shall be in writing and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and –

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

“Provided that where the Presiding Judge pronounces his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.”

[Vide Notification No. 8799, dated 13th January, 1939]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

“Provided that where the judgment is pronounced by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after making such corrections therein as may be necessary, be signed by the Judge or the Judges concerned and shall bear the date of its pronouncement.” (w.e.f. 1-10-1983}

Gujarat.-Same as in Allahabad.

Karnataka.-In Order XLI, in rule 31, insert the following proviso, namely:-

“Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his judgments by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall after such revision as may be deemed necessary be signed by the Judge.”

[Vide Notification No. ROC 2296/59, dated 5th November, 1959].

Kerala.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof, and

(b) after sub-rule (1) as so remembered, insert the following sub-rules, namely:-

“(2) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.

(3) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, for rule 31, substitute the following rule, namely:-

“31. The judgment of the Appellate Court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall bear the date on which it is pronounced and shall be signed by the Judge or the Judges concurring therein:

Provided that, where the presiding Judge is specially empowered by the High Court, to pronounce his judgment by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.”

Orissa.-Same as in Allahabad, (w.e.f. 21-9-1960}

Patna.-Same as in Allahabad inserting after the words “signed by the Judge” the words “or by Judges concurring therein”. Rajasthan.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof; and ,:

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

“{2} Where the judgment is pronounced by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.” (w.e.f. 11-3-1965)

32. What judgment may direct

The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.

33. Power of Court of Appeal

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection 1[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

2[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.]

Illustration

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals, and A and Y are respondents. The Appellate Court decides in favour of X. If has power to pass a decree against Y.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 9 of 1922, s. 4, which under s. 1(2) thereof, may be brought into force in any State by the State Government, on an specified date. The Act has been brought into force in Bombay, Bengal U.P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu.

34. Dissent to be recorded

Where the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.

Decree in appeal

35. Date and contents of decree

(1) The decree of the Appellate Court shall bear date the day of which the judgment was pronounced.

(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from judgment need not sign decre—Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.

HIGH- COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 35, in sub-rule (2), after the word “respondent/’, insert the words “their registered addresses”, (w.e.f. 1-10-1983}

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, in rule 35,-

(a) in sub-rule (2), at the end, omit the full stop and insert the words “in appeal as also in the decree appealed from.”

(b) in sub-rule (4), insert the following proviso, namely:-

“Provided that the provisions of the sub-rule shall not apply to decrees passed by the High Court.”

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 35, in sub-rule (2), after the word “respondent,” insert the words “their addresses for service,”,

[Vide ROC No. 3299 B-I, dated 29th January, 1930.]

Punjab.-In Order XLI, in rule 35, insert the following further proviso, namely:-

“Provided also in the case of the High Court that the Registrar, or such other officer as may be in charge of the Judicial Department from time to time, shall sign the decree on behalf of the Judge or Judges who passed it; but that such Registrar, or such officer, shall not sign such decree on behalf of a dissenting Judge.”

[Vide Notification No. 20-R-XI-Y-I, dated 29th January, 1937.]

36. Copies of judgment and decree to be furnished to parties

Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.

37. Certified copy of decree to be sent to Court whose decree appealed from

A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 37,-

(a) omit the words “and shall be filed with the original proceedings in the suit”;

(b) insert the following para, namely:-

“Where the Appellate Court is the High Court the copies aforesaid shall be filed with the original proceedings in the Court.”

(c) after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition,

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such address.

(3) Rule 21, 22, 23, and 24 or Order VII shall apply, so far as may be, to appellate proceedings.”

Bombay.-In Order XLI, after the rule 37, insert the following rule, namely:-

“38. Registered address to hold good during appellate proceedings.-(1) The registered address filed under Order VI, Rule 14-A shall hold good during all appellate proceedings arising out of the original suit for petition, subject to any alteration under sub-rule (3) hereof.

(2) Every memorandum of appeal shall state the registered address given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses.

(3) Sub-rules (2) and (4) (i) and (ii) of Rule 14-A of Order VI shall apply, so far as may be, to appellate proceedings.” (w.e.f. 1-10-1983)

Delhi.-Same as in Punjab.

Gujarat.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses.” (w.e.f. 17-8-1961).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 22 or Order VIII, rule 12, shall hold good for all notices of appeals and all appellate proceedings of the original suit or petition.

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court for such addresses.

(3) Rule 21 and 22 of Order VII, shall apply, so for as may be, to appellate proceedings.”

Punjab and Haryana.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19 or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition.

(2) The notice of appeal and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause {!), above, and service effected at such addresses shall be as effective as if it had been made personally on the appellant or respondent, as the case may be.

(3) Rules 21, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to appellate proceedings.” (w.e.f. 24-11-1927}

Allahabad.-After Order XLI insert the following Order XL1A, namely:-

“ORDER XLIA
APPEALS FROM ORIGINAL DECREES IN THE HIGH COURT

1. Extent.–The rules contained in this Order shall apply to appeals in the High Court notwithstanding anything to the contrary contained in Order XLI or any other Order and the rules contained in Order XLI shall be deemed to have been modified or repealed in their application to such appeals to the extent of their inconsistency or repugnancy or as indicated herein.

2. Service of notice on pleader.-If a party appears by a pleader all notices to him shall be served upon such pleader, unless the Court directs otherwise.

3. Hearing appear under rule 11 of Order XLI on date of presentation.-Where a memorandum of appeal is admitted on presentation the Court may, if it deems fit, proceed to hear the appeal under rule 11 or Order XLI on the date at which it is presented.

4. Day for appearance of respondent.-Unless the appeal is dismissed under rule 11 of Order XLI a day shall be fixed for the appearance of the respondent and notice thereof shall be given to him. The notice shall call upon him to enter appearance on or before the day so fixed and answer the appeal and inform him (hat the appeal shall be heard on such day thereafter as may be subsequently notified.

5. Mode of entering appearance.-The respondent shall enter appearance by filing a memorandum of appearance in such form as may be prescribed by the Court.

6. Notice of day for hearing appeal.-Notice of the day fixed for the hearing of the appeal shall be given by making an entry thereof in the day’s cause list of the Court for that day and no other notice to the parties shall be necessary.

7. Application of rules 14 and 15 of Order XLI.-Rules 14 and 15 of Order XLI shall not apply in so far as they may be inconsistent with the rules of the Court regarding the nature, service or publication of notices.

8. Amendment of rules 16,17 and 18 of Order XLI.-The following amendments shall be deemed to have been made in Order XLI, namely :-[The Amendments to the rules have been incorporated in the rules themselves (see ante)].

9. Dismissal of appeal for default.-Where default is made is compliance with any rules of the Court which provide for the dismissal of an appeal for such default, the Court may dismiss the appeal.

10. Upon hearing, respondent may object to decree as if he had preferred separate appeal.-Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection within one month from the day fixed for his appearance in the notice served upon him in accordance with rule 4 or within such further time as the Court may deem fit to allow.

11. Application of rule 31 of Order XLI.-Rule 31 of Order XLI shall not apply when the Court dismisses an appeal under rule 11 of that Order.”

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-After Order XLI, insert Order XLIA, rules 1 to 14 which are same as in Madras except rule 11 which is as follows:-

“11. Cost of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar of the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the costs to be inserted therein.”

Karnataka.-After Order XLI, insert the following Order, namely:-

“ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Rules contained in Order XLI shall apply to appeals in the High Court of Mysore with the modifications contained in this Order.

2. Where the memorandum of appeal is presented through an Advocate the memorandum shall state his address for service within the City of Bangalore and such address shall be the address for service of the appellant for all notices and processes issued in or in connection with the appeal or any Interlocutory Application in the appeal.

3. When any notice issued in an appeal preferred to the High Court fixes a date on which or a period within which the parties served with the notice shall enter appearance in the appeal such notice shall be deemed to be a notice fixing a day for hearing the appeal within the meaning of rule 12 of Order XLI.

4. The Court may direct that service of a notice of appeal or other notice of process shall be made by sending the same in a post registered cover prepaid for acknowledgment and addressed to the address for service of the party to be served which has been filed by him in the lower Court or in the High Court. A notice sent in accordance with this rule shall be deemed to be served on the day on which it would in ordinary course of post be delivered to him if the postal cover is not returned within a period of 15 days. When the cover is actually delivered to the party the postal acknowledgment purporting to contain the signature of the party may be deemed to be proof of sufficient service of the notice on the party on the day on which it is actually delivered to him. If the postal cover is returned unserved, any endorsement purporting to have been made thereon by delivery peon or other employee or officer of the postal department shall be prima facie evidence of the statements made therein.

5. If any party or his Advocate to whom a memorandum of cross-objections has been tendered has refused or neglected for three days from the date of such tender to give the acknowledgement mentioned in rule 22 (3) of Order XLI the respondent preferring such memorandum of cross-objections may file into Court an affidavit stating the facts and the Registrar may dispense with service of the copies of the memorandum.

6. (1) Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally, a shorthand note thereof shall be taken by a shorthand writer appointed for the purpose and a transcript made by him shall be signed or initialled by the Judge or Judges concurring therein after making such corrections as may be considered necessary.

(2) Sub-rule (4) of Rule 35 of Order XLI shall not apply to the High Court. Decrees of the High Court shall be signed by the Registrar, Deputy Registrar or Assistant Registrar, as indicated by the Chief Justice.

7. (1) If an appellant or petitioner fails to show due diligence in making all deposits or payments or in taking all necessary steps as required by the Rules of the High Court in the matter of the preparation of the paper book of any appeal or petition, the Registrar may in his discretion, and shall, if the maximum period of extension of the time permissible under sub-rule (9) of rule 1, Chapter IV has expired, post the appeal or petition before the appropriate Bench for orders. The Bench may either grant further time for rectifying the default or omission, or if it thinks fit dismiss the appeal or petition.

(2) Any appeal or petition dismissed under sub-rule (1) may be re-admitted by Court if an application for readmission is made accompanied by a certificate signed by the Registrar certifying that the default or omission for which the order of dismissal was passed has been rectified”.

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-After Order XLI, insert the following Orders namely:-

“ORDER XLIA
APPEAL TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Modification in first appeals to High Court.-The rules contained in Order XLI shall apply to appeals in the High Court of Kerala with modifications contained in this order.

2. Notice fee, etc. to accompany appeal memo.-(1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court of the sum prescribed by rules of Court.

(2) Time for respondent’s appearance.-Notwithstanding anything contained in Rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of memorandum of cross-objections, if any, shall unless otherwise ordered, by thirty days from the service of notice upon him.

3. Appearance to be filed by respondent.-(1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) Penalty for default.-If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record.

(3) Petition for enlargement of time and procedure thereon.-Provided that a respondent may apply by petition for further time; and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant’s default and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) Address for service.-(1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the town of Ernakulam at which service of any notice, order or process may be made on the party filing such memorandum.

(2) When party appears in person or by pleader.-If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader, he shall state in the vakalal an address for service within the town of Ernakulam and shall give notice thereof to each party who has appeared.

(3) Service at pleader’s address.-If a party appears by a pleader, his address for service shall be that of his pleader, and all notice to the party shall be served on his pleader at that address.

5. Service by registered post.-The Court may direct that the service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgment and addressed to the addressee for service of the party to be served, which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with Rule 4, service of any notice or process shall be made at such address.

6. Notice to respondents appearing separately.-If there are several respondents and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

7. Procedure where record not translated and printed before hearing.-(1) If, upon a case being called on for hearing, by the Court, it appears that the record has not been translated or printed in accordance with the rules of Court, the Court may dismiss the appeal or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

(3) When an appeal is dismissed under sub-rule (1), the appellant may apply to the Court for re-admission of the appeal; and when the Court is satisfied that there was sufficient cause for the default, it shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (w.e.f. 20-1-1970).

8. Costs of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar or the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the said to be inserted therein.

Memorandum of Objections

9. (1) Copies of memorandum of objections when to be filed.-If the acknowledgment mentioned in Rule 22 (3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) Prescribed fees for service.-The prescribed fees for service shall be presented together with the memorandum to the Registrar.” (w.e.f. 9-6-1959)

Madras.-After Order XLI, insert the following Orders, namely:-

“ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. The rules contained in Order XLI shall apply to appeals in the High Court of Judicature at Madras with the modification contained in this Order.

2. (1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the Rules of Court.

(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of Memorandum of Cross-Objections, if any, unless otherwise ordered, by thirty days from the service of notice upon him.

3. (1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record:

Provided that a respondent may apply be petition for further time, and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant’s default, and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the City of Madras at which service of any notice, order or process may be made on the party filling such memorandum.

(2) If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader he shall state in the Vakalatnama an address for service within the City of Madras, and shall give notice thereof to each party who has appeared.

(3) If a party appears by a pleader, his address for service shall be that of his pleader, and all notices to the party shall be served on his pleader at that address.

5. The Court may direct that service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgement and addressed to the addressee for service of the party to be served which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with rule 4, service of any notice or process shall be made at such address.

6. All notices and processes, other than a notice of appeal, shall be sufficiently served if left by a party or his pleader, or by a person employed by the pleader, or by an officer of the Court, between the hours of 11 a.m. and 5 p.m. at the address for service of the party to be served.

7. Notices which may be served by a party or his pleader under rule 6, or which are sent from the officer of the Registrar, may, unless the Court otherwise directs, be sent by registered post; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof and posting thereof and posting thereof shall be a sufficient service.

8. If there are several respondents, and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

9. A list of all cases in which notice is to be issued to the respondent shall be affixed to the Court notice board after the case has been registered.

10. (1) If upon a case being called on for hearing by the Court, it appears that the record has not been translated and printed in accordance with the rules of Court, the Court may hear the appeal or dismiss it, or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

11. When costs are awarded, the costs of a party appearing upon any application before the Registrar shall be Rs. 25. At the request of any party the registrar shall cause the order to be drawn up and the said costs to be inserted therein. (Amended on 14-11-1963)

Memorandum of Objections

12. (1) If the acknowledgment mentioned in rule 22(3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) The prescribed fees for service shall be presented together with the memorandum to the Registrar.

13. If any party or the pleader of any party to whom a memorandum of objections has been tendered has refused or neglected for three days from the date of tender to give the acknowledgement mentioned in rule 22(3) of Order XLI, the respondent may file an affidavit stating the facts and the Registrar may dispense with service of the copies mentioned in rule 12 (1).

14. Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally a shorthand note thereof shall be taken by an officer of the Court and a transcript made by him shall be signed or initialled by the Judge or by the Judges concurring therein after making such corrections as may be considered necessary.

ORDER XLIB. LETTERS PATENT APPEALS

1. The rules of Order XLIA shall apply, so far as may be, to appeals to the High Court of Madras under clause 15 of the Letters Patent of the said Court:

Provided that it shall not be necessary to file copies of the judgment and decree appealed from.

2. Notice of the appeal shall be given in manner prescribed by Order XLIA, rule or if the party to be served has appeared in person in manner prescribed by rule 5 of the said Order,”

[Vide GO No. 2128-Home (Judi), dated 18th October, 1917.]

ORDER XLII. APPEALS FROM APPELLATE DECREES

1. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals from Appellate decrees, subject to the following proviso:

Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from unless the Court sees fit to dispense with either or all of them-

(1) a copy of the judgment on which the said decree is found, –^

(2) a copy of the judgment of the Court of the first instance, and

(3) a copy of the finding of the Civil the Revenue Court, as the case may be, where an issue was remitted to such Court for decision.”

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Calcutta.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees:

Provided that every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and also (unless the Court sees fit to dispense within any or all of them), by copies of the judgment on which the said decree is founded and of the judgment and decree of the Court of first instance.”

[Vide Notification No. 1750-G, dated 15th February, 1938.]

Gauhati.-Same as in Calcutta.

Kerala.-In Order XLII, in rule 1,-

(a) after the words “Order XLI”, insert the words “as modified by Order XLIA”.

[Vide Notification No. 1-32897/68, dated 5th January, 1970.]

(b) after rule 1, insert the following rule, namely:-

“2. Memo to be typed or printed. What to accompany memorandum.-(1) The memorandum of appeal shall be printed or type written and shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and (unless the Court dispenses therewith) a certified copy of the decree and judgment of the Court of first instance.

(2) Copies of documents to be construed.-If any ground of appeal is based upon the construction of a document, a true copy of such document shall be presented with the memorandum of appeal.” (w.e.f. 9-6-1959)

Punjab.-In Order XLII, after rule 1, insert the following rule, namely:-

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith.”

[Vide Notification No. 4685-G, dated 17th October, 1919 and Notification No. 138-G, dated 19th March, 1926.]

Rajasthan.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. Procedure.-The rule of Order XLI shall apply, so far as may be, to appeals from appellate decree, subject to the following proviso;

Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and unless the Court sees fit to dispense with either or all them-

(1) a copy of the judgment on which the said decree is founded,

(2) a copy of the judgment of the Court of the first instance, and

(3) a copy of the finding of the Civil or Revenue Court, as the case may be, where as issue was remitted to such Court for decision.”

1[2. Power of Court to direct that the appeal be heard on the question formulated by it

At the time of making an order under rule 11 or Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100 and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appelant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

3. Application of rule 14 of Order XLI

Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-For Order XLII, substitute the following Order, namely:-

“ORDER XLII
APPEALS FROM APPELLATE DECREES

1. The Rules contained in Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Mysore from appellate decrees with the modifications contained in this Order.

2. The memorandum of appeal shall be accompanied by one certified copy each of the decree and judgment of the Court of the first instance and one certified copy each of the decree and judgment of the Appellate Court.

3. If any ground of appeal is based upon the constriction of a document a copy of such document shall be presented with the memorandum of appeal, and if such document is not in the language of the Court a translation thereof or of a material portion thereof certified to be a true translation by the appellant’s Advocate shall be presented.”

Madras.-For Order XLII, substitute the following Order, namely:-

“ORDER XLII 
APPEALS FROM APPELLATE DECREES

1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Judicature at Madras from appellate decrees with the modifications contained in this Order.

2. (1) The memorandum of appeal shall be printed or typewritten and shall be accompanied by the following papers;

(2) One certified copy of the decrees of the Court of first instance and of the Appellate Court and four printed copies of each of the judgments of the said Courts, one copy of each judgment being a certified copy;

(3) If any ground of appeal is based upon the construction of a document, a printed or typewritten copy of such document shall be presented with the memorandum of appeal:

Provided that if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.

3.1f the appellant fails to comply with this rule, the appeal may be dismissed.” (w.e.f. 18-10-1917).

Punjab.-In Order XLII, after rule 1, insert the following, namely:-

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith”, (w.e.f. 9-6-1959)

Kerala.-After Order XLII, insert the following Order, namely:-

“ORDER XLIIA
APPEALS FROM DECREES AND ORDERS OF SINGLE JUDGE TO DIVISION BENCH OF THE HIGH COURT

Procedure.-The Rules of Orders XLI and XLIA shall apply, so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench.” (w.e.f. 9-6-1959).

ORDER XLIII. APPEALS FROM ORDERS

1. Appeals from orders

An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed];

2* * * *

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex pane

2* * * * *

(f) an order under rule 21 of Order XI;

2* * * * *

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

1[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

3* * * * *

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

4[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]

3* * * * *

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an order under rule 1, rule 2 4[rule 2A], rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

5* * * *

(w) an order under rule 4 of Order XLVII granting an application for review.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Clauses (b), (e), (g) and (h) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

3. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

5. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLIII, in rule 1, omit clauses (g), (i) and (o).

[Vide Notification No. 43/VII-d-29, dated 1st June, 1957.]

Andhra Pradesh-In Order XLIII, in rule 1,-

(i) after clause (i) insert the following clause, namely:-

“(ii) an order under rule 106 of Order XXI;”

[Vide Notification No. P Dis. 229/56, dated 2nd April, 1956.]

(ii) in clause (r), after the words and figure “rule 2”, insert the words and figures “rule 3A, rule 3B”. (w.e.f. 12-7-1962)

Bombay.-In Order XLIII, in rule 1,-

(i) in clause (r), for the words and figures “or rule 10”, substitute the words and figures v “rule 10 and rule 11”; (w.e.f. 1-11-1966)

(ii) omit clause (w).

[Vide Notification No. 1646, dated 9th March, 1926.]

Calcutta.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

“(i) (a) An order under rule 57 of Order XXI, directing that an attachment shall cease or directing or omitting to direct that an attachment shall continue.”

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Gauhati.-Same as in Calcutta.

Gujarat-Same as in Bombay (ii).

Kerala.-In Order XLIII, in rule 1, same as in Madras (b). (9-6-1959)

Madras.-In Order XLIII, in rule 1,-

(a) after clause (i) insert the following clause, namely:-

“(ii) an order under rule 106 of Order XXI.” (w.e.f. 19-5-1954)

(b) in clause (s), at the end, insert the words “except an order under the proviso to sub-rule (2) of rule 4.”

[Vide P Dis. No. 60 of 1933.]

Patna.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

“(ii) an Order in garnishee proceedings other than an order referred to in rule 63 H (1) of Order XXI.” (w.e.f. 7-1-1936)

1[1A. Right to challenge non-appealable orders in appeal against decree-

(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from orders.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLIII, in rule 2, after the words and figures “Order XL1”, insert the words and figures “and Order XLIA”.

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-Same as in Madras.;

Karnataka.-In Order XLIII, for rule 2, substitute the following rules, namely:-

“2. The rules contained in Orders XLI and XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any subordinate Court from which an appeal to the High Court is allowed under the provisions of any law:

Provided that in the case of appeals against interlocutory orders made prior to decree or final order, the Court which passed the order appealed from need not send the records of the case unless an order has been made by the High Court for stay of further proceedings in that Court but send only such records as may be called by the High Court.

3. Rules contained in Order XLII shall apply, so far as may be, to appeals from appellate Orders.”

[Vide Notification No. ROC 2296/59, dated 5th Novembrer, 1959.]

Kerala.-In Order XLIII, for rule 2, substitute the following rule, namely:-

“2. The rules of Order XLI, Order XLIA and Order XLII, rule 2(2) shall apply, so far as may be, to appeals from the Orders specified in rule I and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.” (w.e.f. 9-6-1959)

Madras.-In Order XLIII, for rule 2,-

(a) substitute the following rule, namely:-

“2. The rules of Order XLI and of Order XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.”

(b) after rule 2, insert the following rule, namely:-

“3. Appeals from Appellate Orders.-(1) The provisions of Order XLII shall apply, so far as may be, to appeals from appellate orders.

(2) A memorandum of appeal from an appellate order shall be accompanied by a certified copy of the judgment and of the order of the Court of first instance, and by a certified copy of the judgment and of the order of the Appellate Court.

(3) If any ground of appeal is based upon the construction of a document, a printed a typewritten copy of such document shall be presented with the memorandum of appeal:

Provided that, if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.”

[Vide P Dis. No. 788 of 1932.]

Punjab, Haryana and Chandigarh.-In Order XLIII, for rule 2, substitute the following rule, namely:-

“2. The rules of Order 41 shall apply, so far as may be, to appeals from order:

Provided that in case of appeals against interlocutory orders, the Court which passed the order appealed from shall not sent the records of the case unless summoned by the Appellate Court.” (w.e.f. 28-1-1993)

ORDER XLIV. [APPEALS BY INDIGENT PERSONS]

ORDER XLIV. 1[APPEALS BY INDIGENT PERSONS]

1. Subs. by Act No. 104 of 1976 for “PAUPER APPEALS” (w.e.f. 1-2-1977)

1. Who may appeal 1[as an indigent person]

(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an 2[indigent person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by 3[indigent , persons], in so far as those provisions are applicable.

4* * * * *

5* * * * *

1. Subs. by Act No. 104 of 1976 “as pauper” (w.e.f. 1-2-1977)

2. Subs.by Act No. 104 of 1976 “pauper” (w.e.f. 1-2-1977)

3. Subs.by Act No. 104 of 1976 “paupers” (w.e.f. 1-2-1977)

4. Proviso omitted by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)

5. Sub-rule (2) Omitted by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh–In Order XLIV, in rule 1, in sub-rule (1), insert the following proviso, namely:-

“Provided that in case where the appeal is presented to the High Court, the application for permission to appeal as pauper may be presented by the applicant in person or by his or her authorised agent or by an Advocate.” (w.e.f. 30-4-1970)

1 [2. Grant of time for payment of court-fee

Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee has been paid in the first instance.

1. Subs. by Act No. 104 of 1976, sec. 90, for rule 2 (w.e.f. 1-2-1977)

3. Inquiry as to whether applicant is an indigent person

(1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of the Court.

(2) Where the applicant, referred to in rule 11, is alleged to have become an indigent person since the date of the decree appealed from, the inquiry into the question whether or not he is an indigent person shall be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court unless the Appellate Court considers it necessary in the circumstances of the case that the inquiry should be held by the Court from whose decision the appeal is preferred.]

HIGH COURT AMENDMENT

Allahabad.-In Order XIV, for rule 3, substitute the following rule, namely:-

“3. Inquiry as to whether applicant is an indigent person.- The inquiry into the question whether or not the applicant referred to in rule 1, is an indigent person shall be made by the Appellate Court or under the orders of the Appellate Court by an officer of that Court unless the Appellate Court consider it necessary, in the circumstances of the case, that the inquiry should be held by the Court from whose decision the appeal is preferred;

Provided that if such applicant was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from, but if the Government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be made in the manner stated above.” (w.e.f. 25-4-1987)

ORDER XLV. APPEALS TO THE SUPREME COURT

ORDER XLV. APPEALS TO THE SUPREME COURT

1. “Decree” defined

In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of

1[(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of.

2[(2) Every petition under sub-rule (1) shall be heard as expeditiously>as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

1. Rule 2 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

STATE AMENDMENT

Uttar Pradesh.-In its application to the State of Uttar Pradesh, in rule 2 after sub-rule (2) the following sub-rule be inserted, namely:-

“(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally to the Court whose decree is to be complained of, immediately before or after the pronouncement of the judgment by the Court, for a certificate contemplated in sub-rule (1) of rule 3, and the Court may either grant or refuse the certificate, or direct the applicant to file petition as required by sub-rule (1):

Provided that if an oral application is entertained and rejected, no written petition under sub-rule (1) shall lie.” [U.P. Act 57 of 1976].

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XLV, for rule 2, substitute the following rules, namely:-

“2. Application of Court whose decree or judgment complained of.-Whoever desires to appeal to the Supreme Court under clause (1) of Article 133 of the Constitution shall apply for a certificate by petition to the Court whose decree or judgment is complained of:

Provided that an application may be made orally for the purpose, immediately after the judgment had been delivered:

Provided further where the certificate has been refused on an oral application no subsequent petition for the certificate shall He.”

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

Bombay.-In Order XLV, in rule 2, after sub-rule (2), insert the following sub-rule, namely:-

“3. Application to Court whose decree is complained of.-(1) Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

(2) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment by the Court, and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

Provided, however, that if an oral application for leave under sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.” (w.e.f. 1-10-1983)

Madras.-In Order XLV, in rule 2, for sub-rule (!}, substitute the following sub-rule, namely:-

“(1) whoever desires to appeal to the Supreme Court, any, make an oral application to the Court whose decree is complained or, immediately after the pronouncement of the judgment and in such a case, it shall be heard and disposed of immediately, or may apply by petitions to the Court, whose decree is complained of.”

[Vide Tamil Nadu Government Gazette, Pt. III, Sec. 2, p. 136, dated 16th November, 1988.]

Patna.-In Order XLV, for rule 2, substitute the following rule, namely:-

“2. Application to Court whose judgment, decree or final order is complained of.-(1) Whoever desires to appeal to the Supreme Court may apply by petition to the Court whose judgment, decree or final order is complained of.

(2) Notwithstanding anything contained in sub-rule (!) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment or final order by the Court and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

Provided that if an oral application for leave under the sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.”

[Vide Bihar Gazette, Pt. III, p. 3, dated 11th January, 1978.]

3. Certificate as to value or fitness

1[(1) Every petition shall state the grounds of appeal and pray for a certificate-

(i) that the case involves a substantial question of law of general importance, and

(ii) that in the opinion of the Court the said question needs to be decided by th Supreme Court.]

(2) Upon receipt of such petition, the Court shall direct notice to be served on th opposite party to show cause why the said certificate should not be granted.

1. Subs. by Act No. 49 of 1973 for sub-rule (1).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. 1/VII-d-158, dated, 4th January, 1960.]

Andhra Pradesh.-In Order XLV, for rule 3, substitute the following rule, namely:-

“3. Contents of the petition.-Every such petition shall state the grounds of appeal and pray for a certificate to appeal to the Supreme Court under clause (1) of article 13 of the Constitution.”

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

Bombay.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit the full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. P 1614/45, dated 26th June, 1951.]

Gujarat.-Same as in Bombay.

Kerala.-In Order XLV, in rule 3,-~

(i) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Upon receipt of such petition, the Court, after fixing a day for hearing the applicant or his pleader and hearing him, if he appears, may dismiss the petition.”

(ii) after sub-rule (2), insert sub-rule (3) as in Madhya Pradesh (b).

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XLV, in rule 3,-

(a) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Upon receipt of such petition, the Court, after sending for the record, and after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, may dismiss the petition.”

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Unless the Court dismisses the petition under sub-rule (2), it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.” (w.e.f. 16-9-1960)

Madras.-In Order XLV, in rule 3, in sub-rule (2), insert the following proviso, namely:-

“Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine, notice shall not be necessary unless the Court otherwise directs.” (w.e.f. 19-6-1969)

Orissa.-In Order XLV, in rule 3, for sub-rule (2), substitute the following sub-rules, namely:-

“(2) Upon receipt of such petition, the Court may, after giving the applicant or his pleader an opportunity of being heard dismiss the petition summarily.

(3) Unless the Court dismisses the petition under sub-rule (2) it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted:

Provided that where a party has appealed through a pleader in the High Court, service of notice on such pleader either in the manner provided in this Code or by sending a copy of such notice by registered post shall be deemed to be sufficient notice to the party.” (w.e.f. 14-5-1984)

4. [Consolidation of suits.]

Rep. by the Code of Civil Procedure (Amendment Act, 1973 (49 of 1973) s. 4 (w.e.f. 29-11-1973).

5. [Remission of dispute to Court of first instance.]

Rep. by s. 4, ibid, (w.e.f. 29-11-1973).}

6. Effect of refusal of certificate

Where such certificate is refused, the petition shall be dismissed.

7. Security and deposit required on grant of certificate

(1) Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow; from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,-

(a) furnish security in cash or in Government securities for the costs of the respondent, and

(b) deposit the amount required to defray the expense of translating, transcribing indexing printing, and transmitting to the Supreme Court a correct copy of the whole record of the suit, except-

(1) formal documents directed to be excluded by any Rule of the Supreme Court in force for the time being;

(2) papers which the parties agree to exclude;

(3) accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and

(4) such other documents as the High Court may direct to be excluded:

Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:

Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 7′,-

(a) in sub-rule (1), in clause (a), between the words “the respondent” and the word “, and” insert the words “except when the Government is the applicant”

(b) in sub-rule (1), in the first proviso, for the words “at the time of granting the certificate”, substitute the words “at any time before expiry of the period for furnishing security”.

[Vide Notification No. 3713-454(7), dated 20th June, 1936 and Notification No. 676/35(a)-1, dated 4th February, 1939.]

Andhra Pradesh.-In Order XLV, omit rule 7. (w.e.f. 4-8-1975)

Bombay.-In Order XLV, after rule 7 insert the following rule, namely:-

“7A. Security not to be demanded from Union or State Government or Government servant defended by Government.-No such security as is mentioned in clause (a) of sub-rule (1) of rule 7 above shall be required from the Union of India or [a State Government or where] Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to [have been] done by him in his official capacity.” (w.e.f. 1-10-1983)

Gujarat.-In Order XLV, after rule 7, insert the following rule, namely:-

“7A- No such security as is mentioned in clause (a) of sub-rule (1) of rule 7, shall be required from the Union of India, or, where the State Government has undertaken the defence of the suit from any public officer sued in respect of an act alleged to be done by him in his official capacity.” (w.e.f. 17-8-1961)

Kerala.-In Order XLV, in rule 7, after sub-rule (1) insert the following sub-rule, namely:-

“(2) No such security as is mentioned in rule 7(1) clause (a) shall be required from the Government or, where State Government has undertaken the defence of the suit, from any public officer and in respect of an Act purporting to be done by him in his official capacity.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XLV, insert rule 7A as in Gujarat.

[Vide Notification No. 3409, dated 29th June, 1943.]

8. Admission of appeal and procedure thereon

Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall-

(a) declare the appeal admitted,

(b) give notice thereof to the respondent,

(c) transmit to the Supreme Court under the seal of the Court a correct copy of the said record, except as aforesaid, and

(d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XLV, for rule 8, substitute the following rule, namely:-

“8. On receipt from the Supreme Court of the copy of the petition of appeal, the Registrar of the Court shall-

(i) cause notice of the lodgment of the petition of appeal to be served on the respondent personally or in such manner as provided for service of its own processes or as the Court may prescribe or order;

(ii) unless otherwise ordered by the Supreme Court, transmit to the Supreme Court at the expense of the appellant the original record of the case; and

(iii) as soon as notice as aforementioned is served, to send a certificate as to the date or dates on which the said notice was served.” (w.e.f. 4-8-1975)

Madras.-In Order XLV, in rule 8,-

(i) for clause (b), substitute the following clause, namely:-

“(b) give notice to such of the respondents as have entered appearance at the hearing, of the appeal in the High Court and such of the respondents who have entered appearance in pursuance of nonce issued under rule 3(2) supra,”;

(ii) in clause (c), at the end, insert the words “give notice of such transmission to the respondents specified in rule 8{b) above, and”, (w.e.f. 28-1-1959)

9. Revocation of acceptance of security

At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 9. (w.e.f. 4-8-1975)

9A. Power to dispense with notices in case of deceased parties

Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.

HIGH COURT AMENDMENT

Kerala.-In Order XLV, in rule 9A, in the proviso after the words “sub-rule”, for the figure “(2) ” substitute the figure “(3)”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

10. Power to order further security or payment

Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to the Supreme Court such security appears inadequate,

or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,

the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within except as aforesaid.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 10. (w.e.f. 4-8-1975)

11. Effect of failure to comply with order

Where the appellant fails to comply with such order, the proceedings shall be stayed,

and the appeal shall not proceed without an order in this behalf of the Supreme Court

and in the meantime execution of the decree appealed from shall not be stayed.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 11. (w.e.f. 4-8-1975)

12. Refund of balance deposit

When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance (if any) of the amount which he had deposited under rule 7.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 12. (w.e.f. 4-8-1975)

13. Powers of Court pending appeal

(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the court,-

(a) impound any movable property in dispute or any part thereof, or

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

14. Increase of security found inadequate

(1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

(2) In default of such further security being furnished as required by the Court,-

(a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security;

(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respectiong the subject-matter of the appeal as it thinks fit.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 14. (w.e.f. 4-8-1975)

15. Procedure to enforce orders of the Supreme Court

(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Courts, was preferred.

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

1[* * *]

(4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

1. Sub-Rule (3) omitted, by A.O. 1950. HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 15, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Whoever desires to obtain,-

(a) execution of any order of any Supreme Court; or,

(b) where an appeal has been dismissed by the Supreme Court for want of prosecution, an order of the Court from which the appeal to [the Supreme Court] was preferred terminating proceedings and determining the costs, shall apply to the said Court by a petition, accompanied by a certificate copy of the decree passed or order made by the Supreme Court of which execution is desired or to which the effect is to be given and a memorandum of all costs incurred in India that are claimed in pursuance thereof.”

[Vide Notification No. 1591/35(a), dated 7th April, 1928.]

Andhra Pradesh.-In Order XLV, in rule 15,-

(i) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order, to the Court of first instance.

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceedings was first instituted and where such Court has ceased to exist or to have jurisdiction to execute it, the Court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.”

(ii) omit sub-rule (2);

(iii) Renumber sub-rule (4) as sub-rule (2).

[Vide Notification No. ROC No. 6842/51-B-l, dated 9th August, 1957.]

Bombay.-In Order XLV, for rule 15, substitute the following rule, namely:-

“15. Procedure to enforce order of the Supreme Court.-(1) (a) Any decree passed or order made by the Supreme Court in exercise of the appellate jurisdiction including any order as to the costs of, and incidental to, any proceedings in that Court shall be enforceable in accordance with the provisions of law for the time being in force relating to the enforcement of the decrees or orders of the Court or Tribunal from which the appeal to the Supreme Court was preferred or sought to be preferred.

(b) The costs incurred in the High Court as incidental to the Supreme Court Appeal including the costs in the application for leave to appeal to the Supreme Court shall be recoverable where awarded, by execution of the order of the High Court in the same manner in which the decree or order of the High Court from which the appeal to the Supreme Court was preferred or sought to be preferred would have been executed.

(2) Unless the Supreme Court otherwise directs no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing of the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court but such order shall have the same force and effect as it had been made before the death took place.” (w.e.f. 1-10-1983)

Karnataka.-In Order XLV, in rule 15, omit sub-rules (1) and (2). (w.e.f. 30-3-1967)

Madras.-Same as in Andhra Pradesh. (w.e.f. 28-5-1958)

16. Appeal from order relating to execution

The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, after rule 16, insert the following rule, namely:-

“17. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutatis mutandis, to the execution of decrees or orders for costs passed by the Supreme Court in appeals from the High Court”

[Vide Notification No. 3922/VII-d 107, dated 14th August, 1948,]

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XLV, after rule 16, insert the following rule, namely:-

“16A. Appeals to Federal Court.-The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply, mutatis mutandis, to the execution of decrees or orders for costs passed by the Federal Court in appeals from the High Court.”

Madhya Pradesh.-In Order XLV, insert rule 17 which is same as in Allahabad with insertion of the words “in accordance with the declaration or order made” after the words “orders for costs passed”.

[Vide Notification No. 3409, dated 20th June, 1943.]

Madras.-(1) In Order XLV, after rule 16, insert the following rule, namely:-

“16A. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutants mutandis to the execution of decrees or orders for costs passed in the Federal Court in appeals from the High Court.”

[Vide ROC. No. 280 of 1945.]

(2) After Order XLV, insert the following Order, namely:-

“ORDER XLVA
APPEALS TO THE SUPREME COURT

1. Decree defined.-In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree is complained of.-Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

3. Certificate as to value or fitness.-(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to the Supreme Court.

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted:

Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine notice shall not be necessary unless the Court otherwise directs.

4. Consolidation of suits.-For the purpose of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same questions for determination.

5. Remission of dispute to Court of first instance.-In the event of any dispute arising between the parties as to the amount or value of the subject-matter or the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to the Supreme Court, the Court to which a petition for a certificate is made under rule 2, may, if it thinks fit, refer such dispute for report to the Court of first instance, which last mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the Court by which the reference was made.

6. Effect of refusal of certificate.-Where a certificate is refused, the petition shall be dismissed.

7. Powers of Court pending appeal.-(1) Notwithstanding the grant of leave to appeal to the Supreme Court, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit on special cause shown by any party interested in the suit, or otherwise appearing to the Court.

(a) impound any movable property in dispute or any party thereof, or

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of the decree appealed from or of any decree or order which the Supreme Court may make on appeal, or

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of appeal, as it thinks fit by the appointment of a receiver or otherwise, till the petition for leave to appeal is disposed of or till the appeal is filed in the Supreme Court.

8. Procedure to enforce orders of the Supreme Court.-(1) whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order to the Court of first instance.

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceeding was first instituted and where such Court has ceased to exist or to have jurisdiction to execute it, the Court, which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit.

(2) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground, that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

9. Appeal from order relating to execution.-The orders made by Court which executes the decree or order of the Supreme Court relating to such execution, shall be appealable in the same manner as the orders of such Court relating to the execution of its own decree.” (w.e.f. 21-4-1971 and 21-8-1974)

17. [Appeals to Federal Court].

Rep. by the Federal Court Act, 1941 (21 of 1941), s. 2

HIGH COURT AMENDMENT

Punjab and Haryana.-For Order XLV, substitute the following Order, namely:-

“ORDER XLV
APPEALS TO THE SUPREME COURT

1. “Decree defined.- In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of.- Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

3.Certificate as to the fitness.-(1) Every petition shall state the grounds of appeal and pray for a certificate-

(i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.

(2) Union receipt of such petition, the Court shall, unless it dismisses the petition at the preliminary hearing, direct notice to be served on the opposite-party to show , cause why the said certificate should not be granted. . .

4. [Omitted]

5. [Omitted]

6. Effect of refusal of certificate.–Where such certificate is refused, the petition shall be dismissed.

7. Deposit required on grant of certificate.-(1) Where the certificate is granted the applicant shall within ninety days of the order of the Supreme Court under rule 14 (1) of the Supreme Court Rules for the time being in force or such further period not exceeding sixty days as the Court may, upon cause shown, allow from the date of the Supreme Court Order under rule 14 {!), whichever is later :

(a) deposit the amount required to defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court three copies of the whole record of the suit except-

(1) formal documents directed to be excluded by any rule of the Supreme Court in force for the time being;

(2) papers which the parties agree to exclude;

(3) accounts or portions of accounts which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included;

(4) such other documents as the High Court may direct to be excluded.

8. Power to order further payment.- Where at any time after the admission of an appeal but before the transmission of the copy at the record to the Supreme Court further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to make, within a time to be specified by the Court, the required payment.

9. Effect to failure to comply with order.- Where the appellant fails to comply with such order, the proceedings shall be stayed,

and the appeal shall not proceed without an order in this behalf of the Supreme Court, and in the meantime execution of the decree appealed from shall not be stayed.

9A. Power to dispense with notice in case of deceased.- Nothing in this rules requiring any notice to be served on or given to an opposite-party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such opposite-party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

Provided that notice under sub-rule (2) of rule 3 shall be given by affixing the same on some conspicuous place in the Court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspaper as the Court may direct.

10. Refund of balance deposit.- When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance, if any, or the amount which he has deposited under rule 7.

11. Power of Court pending appeal.-(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

(2) The Court may, if it thinks, fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,-

(a) impound any movable property in dispute or any part thereof, or

(b) allow the decree appeal from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

12. Procedure to enforce orders of the Supreme Court.-(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred.

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct, and shall upon the application of either party give directions as may be required for the execution of the same, and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of the original decrees.

(3) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such opposite-party or respondent did not appear either at hearing in the Court whose decree was complained of or at any proceeding subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before

13. Appeal from order relating to execution.-The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees,”

[Vide G.S.R. CA/5/1908/S/122/73, dated 21st December, 1973, published in the Punjab Government Gazette, L.S. dated 4th January, 1974.]

ORDER XLVI. REFERENCE

1. Reference of question to High Court

Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court.

2. Court may pass decree contingent upon decision of High Court

The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred;

But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.

3. Judgment of High Court to be transmitted and case disposed of accordingly

The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.

4. Costs of reference to High Court

The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.

1[4A. Reference to High Court under proviso to section 113

The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1.

1. Ins. by Act 24 of 1951, sec. 2.

5. Power to alter, etc,, decree of Court making reference

Where a case is referred to the High Court under rule 1 or under the proviso to section 113, the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.

6. Power to refer to High Court questions as to jurisdiction in small causes

(1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reason for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Cour either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.

HIGH COURT AMENDMENTS

Kerala.-In Order XLVI, in rule 6, in sub-rule (1), for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause Jurisdiction”.

[Vide Notification No. Bl-3312/58, dated 7th April 1959.]

7. Power to District Court to submit for revision proceedings had undet mistake as to jurisdiction in small causes

(1) Where it appears to a Districl Court that a Court sub-ordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.

(3) With respect to any proceeding subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVI, after rule 7, insert the following rule, namely:-

“8. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order.”

[Vide Notification No. 1465/35(a)-5(4), dated 1st June, 1918.]

Bombay.-In Order XLVI, after rule 7, insert the following rule, namely:-

“8. Applicability of rule 38 of Order XLI.- Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this order.” (w.e.f. 1-11-1966)

Gujarat.-Same as in Allahabad.

Kerala.-In Order XLVI, omit rule 7.

ORDER XLVII. REVIEW

1. Application for review of judgment

(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree on order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

1[Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Kerala.-In Order XLVII, in rule 1, in sub-rule (1), in clause (c), for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause Jurisdiction”, (w.e.f. 9-6-1959)

(ii) The discovery of new evidence on a question of fact, though is a good ground for the review of the decree of the first appellate Court, is no ground for review of the decree of the second appellate Court; Hori Lal v. Sharwan Kumar, AIR 1993 Del 85: 1993 (1) Cur CC 121.

2. [To whom applications for review may be made.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of1956), s. 14.

3. Form of applications for review

The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review.

4. Application where rejected

(1) Where it appear to the Court that there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted-Where the Court is of opinion that the application for review should be granted, it shall grant the same:

Provided that-

(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

5. Application for review in Court consisting of two or more Judges

Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.

HIGH COURT AMENDMENTS

Bombay.-In Order XLVII, for rule 5, substitute the following ruie, namely:-

“5. Application for review in Court consisting of two or more Judges.-Where the Judge or Judges, or any one of the Judges who passed the decree or made the order, a review of which is applied for, continues or continue to be attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of two months next after application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same:

Provided that if in the case of a decree or order passed by a Division Bench of two or more Judges of the High Court sitting at any place in the State of Maharashtra, all the said Judges are not available for sitting together at one place when the review application is ready for hearing, the application may be heard by a Division Bench of two or more Judges, at least one of whom, if available, should be the Judge who had passed the decree or order a review of which is applied for.”

[Vide Maharashtra Government Gazette, Pt. 4, ka, p. 429, dated 15th September, 1983 (w.e.f. 1-10-1983).]

Gujarat.-Same as in Bombay substituting the word “Gujarat” for the word “Maharashtra” in the proviso.

6. Application where rejected

(1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.

(2) Where there is a majority, the decision shall be according to the opinion of the majority.

7. Order of rejection not appealable. Objections to order granting application

1[(1) An order of the Court rejecting the application shall not be appealable;

but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.]

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he my apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

1 Subs. by Act No. 104 of 1976 for sub- rule (1) w.e.f. 1-2-1977)..

8. Registry of application granted, and order for re-hearing

When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

9. Bar of certain applications

No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVII, after rule 9, insert the following rule, namely:-

“10. Rule 38 of Order XLJ shall apply, so far as may be, to proceedings under this order.”

[Vide Notification No. 146S/35fa)-5(4), dated 1st June, 1918.]

Bombay.-(1) In Order XLVII, after rule 10, insert the following rule, namely:-

“10. Applicability of rule 38 of Order XLI.-Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order.” (w.e.f. 1-10-29S3)

(2) After Order XLVII, insert the following Order, namely:-

“ORDER XLVIIA

1. Applicability of rule 38 of Order XLI shall apply, so far as may be, to proceedings under section 115 of this Code.”

Gujarat.-Same as in Allahabad.

ORDER XLVIII. MISCELLANEOUS

1. Process to be served at expense of party issuing

(1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

(2) Costs of service-The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVIII, in rule I, in sub-rule (1), before the words “Every process issued” prefix the words “Except as provided in Order IV, rule 1(2)”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

Bombay.-In Order XLVIII, in rule 1, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Cost of service.-The Court-fee chargeable for service of the process of the Court shall, except as provided for in sub-rule (2) of rule 1 of Order IV, be paid when the process is applied for, or within such time as may be fixed by the Court.” (w.e.f. 1-10-1983)

Calcutta.-In Order, XLVIII, in rule 1, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) The Court-fee chargeable for such service shall be paid when the process is applied for, or within such time, if any, as the Court may, when ordering its issue fix for the purpose.”

[Vide Notification No. 1154-G, dated 17th January, 1934.]

Gauhati.-Same as in Calcutta.^

Gujarat.-Same as in Bombay .substituting the words “other than the summons to the defendants, shall” for the words “shall, except as provided for in sub-rule (2) of rule 1 of Order IV”.

Madhya Pradesh.-In Order XLIIL in rule 1, in sub-rule (2), for the words “The Court-fee”, substitute the words “Except as provided in Order IV rule 1(2) the Court-fee”.

[Vide Notification No. 3409, dated 29th June, 1943.]

2. Orders and notices how served

All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.

3. Use of forms in appendices.

The forms given in the appendices, with such variation as the circumstances or each case may require, shall be used for the purpose therein mentioned.

HIGH COURT AMENDMENTS

Calcutta.-In Order XLVIII, in rule 3, after the word “appendices”, insert the words “or such other forms as may be prescribed by the High Court of Judicature at Fort William in Bengal”.

[Vide Notification No. 7987-G, dated 18th April, 1935.]

Gauhati.- Same as in Calcutta.

Punjab and Haryana.-In Order XLVIII, after rule 3, insert the following rule, namely:-

“4. The provisions of rules 11 (2), 17, 18,19 and 21 of Order XLI of the Code of Civil Procedure, 1908, shall apply mutatis mutandis to civil revision petitions.”

[Vide G.S.R. 107, C.A. 5/8/S, 122/70, dated 16th October, 1970.]

ORDER XLIX . CHARTERED HIGH COURTS

1. Who may serve processes of High Court

Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.

HIGH COURT AMENDMENT

Kerala.-Omit Order XLIX. (w.e.f. 9-6-1959)

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

2. Saving in respect of Chartered High Courts

Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the the taking of evidence or the recording of judgments and orders by a Chartered High Court.

3. Application of rules

The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

(1) rule 10 and rule 11, clauses (b) and (c), of Order VII;

(2) rule 3 of order X;

(3) rule 2 of Order XVI;

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) rules 1 to 8 of Order XX; and

(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum);

and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.

HIGH COURT AMENDMENTS

Bombay.-In Order XLIX,-

(i) for rule 3, substitute the following rule, namely:-

“3. Application of Rules.-The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

(1) rule 19A of Order V;

(2) rule 10, clauses (b) and (c) of rule 11 and rule 14A of Order VI, ,

(3) rule 4A of Order VI;

(4) rule 3 of Order X;

(5) rule 2 of Order XVI;

(6) rules 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 (so far as relate to the manner of taking evidence) of Order XVIII;

(7) rules 1 to 8 (both inclusive) of Order XX;

(8) rule 72A of Order XXI;

(9) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and

(10) rule 38 of Order XLI;

and rules 31 and 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.” (w.e.f. 1-11-1966)

(ii) after rule 3, insert the following rule, namely:-

“4. Where on a memorandum of appeal presented* [to the High Court] within the time prescribed for the same, the whole or any part of the fee prescribed by the law for the time being in force relating to Court-fees has not been paid, the Registrar may in his discretion allow the appellant to pay the whole or part, as the case may be, of such Court-fees [after the presentation of the memorandum of appeal, and may admit the appeal to the Register, even though the Court-fee or part of it may have been paid “”[after the time prescribed for presentation of the appeal].” (w.e.f. 1-10-1983) and *(w.e.f. 1-4-1987)

Calcutta.-In Order XLIX, in rule 3,-

(i) for the word and figures “rule 35”, substitute the words and figures “rules 12, 14, 15 and 35”.

[Vide Notification No. 6874-G, dated 5th October, 1948.]

(ii) after rule 3, insert the following rule, namely:-

“4. A Judge of the High Court may pronounce the written judgment or opinion of any other Judge of the said Court signed by him when such Judge continues to be a Judge of such Court but is prevented by absence or any other reason from pronouncing that judgment or opinion in open Court.”

[Vide Notification No. 7376-G, dated 8th August, 1940.]

Gauhati.-In Order XLIX, after rule 3, insert rule 4 as in Calcutta (ii).

Gujarat.-In Order XLIX,-

(1) for rule 3, substitute the following rule, namely:-

“3. Application of Rules.-The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

(1) rule 21A or Order V; (la) rule 10, clauses (b) and (c) of rule 11 and rules 19 to 26 (both inclusive) of Order VII; (Ib) rules 11 and 12 of Order VIII;

(2) rule 3 of Order X;

(3) rule 2 of Order XVI;

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) rule 1 to 8 of Order XX;

(5a) rule 72A of Order XXI;

(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and

(7) rule 38 of Order XLI;

and rule 31 and 35 of Order XLI shall not apply to such High Court in the exercise of its appellate jurisdiction.”

(ii) after rule 3, insert the following rule, namely:-

“4. Where on a memorandum of appeal presented within the time prescribed for the same, the whole or any part of the fee prescribed by the law for time being in force relating to Court-fees has not been paid, the Registrar may in his discretion allow the appellant to pay the whole or part, as the case may be, of such Court-fees and may admit the appeal to the Register, even though the subsequent payment of Court-fee may have been made after the time prescribed for presentation of the appeal.”

Kerala.-Omit Order XLIX. (w.e.f. 9-6-1959)

ORDER L. PROVINCIAL SMALL CAUSE COURTS

ORDER L
PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts

The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say-

(a) so much of this Schedule as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and orders:-

Order II, rule 1 (frame of suit);

Order X, rule 3 (record of examination of parties);

Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;

Order XVIII, rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

Order XLVII, rules 2, 3,5,6,7 (review);

Order LI.

STATE AMENDMENT

Allahabad.-In Order L, in rule 1, in clause (b), after the words “Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment”, insert the words “and rule 5”.

[Vide President Act 19 of 1973 as re-enacted by Uttar Pradesh Act 30 of 1974.]

HIGH COURT AMENDMENT

Kerala.-In Order L,-

(i) for the heading, substitute the following heading, namely:-

“SUITS TRIABLE AS SMALL CAUSES”,

(ii) in rule 1, for the first paragraph, substitute the following paragraph, namely:-

“The provisions contained here in after specified shall not extend to Civil Courts exercising small cause jurisdiction.”

(iii) in rule 1, in clause (b), omit the word and figures “Order XLI.”

ORDER LI . PRESIDENCY SMALL CAUSE COURTS

ORDER LI . PRESIDENCY SMALL CAUSE COURTS

1. Presidency Small Cause Courts

Save as provided in rules 22 and 23 o Order V, rules 4 and 7 of Order XXI, and rule 4 of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall no extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

HIGH COURT AMENDMENTS

Gujarat.-In Order LI, in rule 1, for the words “in the towns of Calcutta, Madras and Bombay”, substitute the words “in the cities of Ahmedabad, Bombay, Calcutta and Madras”, (w.e.f. 19-3-1962)

Kerala.-Omit Order LI. (w.e.f. 9-6-1959)

Allahabad.-After Order LI, insert the following Order, namely:-

“ORDER LII

1. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under section 115 of the Code.”

[Vide Notification No. 1465/35(a)-5(4), dated 1st June, 1918.]

Gujarat.-Same as in Allahabad.

Madras.-After Order LI, insert the following Order, namely:-

“ORDER LII
LODGING OF CAVEAT

1. Any person, claiming a right to appear before the Court on the hearing of an application which is expected to be made or has been made in a suit, appeal, revision or any proceeding instituted or about to be instituted in a Court to which the Code applies, may lodge a Caveat in the Court. The Caveat shall be in the form prescribed in Appendix Dl. The Caveat shall be accompanied by- ,.

(a) as many copies of the notice of Caveat as will be required to be served on the applicant or applicants;

(b) the Court-fees prescribed for the Caveat; and

(c) the fees prescribed for service of such notice of Caveat.

2. Every Court shall maintain a Register called the Register of Caveats containing the following particulars, namely:-

(1) Serial Number.

(2) Date of presentation of Caveat.

(3) Date upto which the Caveat will remain in force.

(4) Name and address of Caveator.

(5) Address for service of the Caveator within the jurisdiction of the Courtj

(6) Name and address of the Pleader, if any, for the Caveator.

(7) The number of the proceeding, if any, on the file of the Court in which the Caveat is tiled.

(8) The number of the proceeding in the Lower Court against which further proceedings are taken or contemplated to be taken in the Appellate or Revisional Court (This will not apply to the Court of first instance).

(9) Name and address of the applicant or petitioner or the expected applicant or petitioner.

(10) Date of service on the applicant or petitioner or expected applicant or petitioner by the Caveator.

(11) Signature of the Caveator or his Pleader, if any.

3. As soon as a person lodges a Caveat as provided in rule 1 above, an entry shall be made in the Register of Caveats in the presence of the Caveator himself or his pleader, who shall sign the register aforesaid.

4. When a person makes an application for any interlocutory orders in a suit, appeal, revision or any other proceeding, he shall look into the Register of Caveats and make an endorcement in the application as to whether or not a Caveat has been entered with respect to his application as verified from the Register of Caveats.

5. As soon as the Caveator lodges a Caveat, he shall forthwith serve notice of the Caveat by registered post acknowledgement due on the person by whom the application has been made or is expected to be made, and file proof of such service.

6. Where after a Caveat has been lodged, any application is filed in a suit, appeal, revision or any other proceeding, the Court shall serve a notice of the application on the Pleader for the Caveator, if any, or on the Caveator in the manner provided for service on defendant, respondent or opposite party, of summons to appear. All provisions applicable to such summons shall apply to the service of such notice:

Provided that at the time when an application comes up for hearing, the Caveator or his Pleader takes notice, it shall not be necessary for the Court to serve a notice on the Caveator.

7. (a) In respect of the proceedings in the Subordinate Civil Courts in the State and in the appellate Jurisdiction of the High Court of Judicature at Madras Court-fee payable on the Caveat shall be that provided for in the Tamil Nadu Court-fees and Suits Valuation Act, 1955.

(b) In respect of the proceedings on the file of the original side of the High Court, the said fee shall be that provided for in the High Court-fees rules.

8. The fees for service of notice of the Caveat shall be those provided for in the Rules of the High Court, Madras, Original Side, 1956 or in the Rules of the High Court, Madras, Appellate Side, 1965 or in the Rules relating to service and execution of processes made under sub-section (1) of section 80 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, as the case may be.

9. If the Caveat is not lodged in accordance with these Rules, it is liable to be rejected in limine.

APPENDIX D1

IN THE COURT OF …………………………………………………………..
Application……………………No …………….of……………..19…./20……

in

No…………………………………of…………………………19…./20…. .

……………………………………………………………………………..Caveator

Versus

…………………………………………………..Applicant/Petitioner or expected applicant

or petitioner

The address of the Caveator for service of notice within the jurisdiction of this Court is…….

The address of the applicant/petitioner or expected applicant/petitioner for service is……..

Let nothing be done in the above matter without notice to the Caveator. :]

The Caveator above named undertakes to forwith serve a notice of the Caveat by Registered Post with acknowledgement due on the applicant/petitioner or expected applicant/petitioner and file proof of such service.

Dated………………..

CAVEATOR”

Counsel for Caveator.

[Vide Tamil Nadu Gazette, Pt. III, Sec. 2, dated 6th August, 1980.]

APPENDIX. APPENDIX A

APPENDIX A
PLEADINGS

(1) TITLES OF SUITS

In the Court of ………………………………..

A.B. (add description and residence) …………………. Plaintiff

against

C.D. (add description and residence) ……………….. Defendant

(2) DESCRIPTION OF PARTIES IN PARTICULAR CASES

[The Union of Inida or the State of …………….. , as the case may be.]

The Advocate General of ……………………………

The Collector of ……………………………….

The State of …………………………………

The A.B. Company, Limited having its registered office at …………..

A.B., a public officer of the C.D. Company.

A.B. (add description and residence), on behalf of himself and all other creditors of C.D. late of (add description and residence).

A.B. (add description and residence), on behalf of himself and all other holders of debentures issued by the Company …. Limited.

The Official Receiver

A.B., a minor (add description and residence), by C.D. [or by the Court of Wards], his next friend.

A.B. (add description and residence), a person of unsound mind [or of weak mind], by C.D. his next friend

A.B., a firm carrying on business in partnership at

A.B. (add description and residence), by his constituted attorney C.D. (add description and residence)

A.B. (add description and residence), shebait of Thakur ……………

A.B. (add description and residence), executor of C.D., deceased. ……….

A.B. (add description and residence), heir of C.D., deceased.

(3) PLAINTS

No. 1 
Money Lent

(Title)

A.B., the above-named plaintiff, states as follows :

1. On the ……………. day of 19 …….. ……………. he lent the defendant rupees repayable on the …………….day of …………….

2. The defendant has not paid the same, except…………….rupees paid on the …..day of …………….19……..

[If the plaintiff claims exemption from any law of limitation, say :]

3. The plaintiff was aminor [or insane] from the ……………. day of till…. .. …the …………….day of…………….

4. [Facts showing when the cause of action arose and that the Court has jurisdiction. ]

5. The value of the subject-matter of the suit for the purpose of jurisdiction is …………….rupees and for the prupose of court-fees is …………….rupees.

6. The plaintiff claims …………….rupees, with interest at …………….percent, from the …………….day of …………….19 ……..

No. 2 
Money Overpaid

(Title)

A.B., the above named plaintiff, states as follows :-

1. On the …… day of…. 19… the plaintiff agreed to buy and the defendant agreed to sell…. bars of silver at…. annas per tola of fine silver.

2. The plaintiff procured the said bars to be assayed by E. F., who was paid by the defendant for such assay, and E.F. declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly paid the defendant… rupees.

3. Each of the said bars contained only 1,200 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.

4. The defendant has not repaid the sum so overpaid.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 3 
Goods Sold at a Fixed Price and Delivered

(Title)

A. B., the above-named plaintiff states as follows :-

1. On the …… day of……… 19… …, E.F. sold and delivered to the defendant [one hundred barrels of flour, or the goods mentioned in the schedule hereto annexed, or sundry goods.]

2. The defendant promised to pay …… rupees for the said goods on delivery [or or the…… day of…… , some day before the plaint was filed].

3. He has not paid the same.

4. E.F. died on the …… day of 19. …. By his last will he appointed his brother, the plaintiff his executor.

[As in paras 4 and 5 of Form No. 1.]

7. The plaintiff as executor of E.F. claims [Relief claimed].

No. 4 
Goods Sold at a Reasonable Price and Delivered

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of……. 19. .. , plaintiff sold and delivered to the defendant

{sundry articles of house-furniture], but no express agreement was made as to the price.

2. The goods were reasonably worth …. rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and relief claimed. ]

No. 5 
Goods Made at Defendant’s Request, and not Accepted

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , E.F. agreed with the plaintiff that the plaintiff should make for him [six tables and fifty chairs] and that E.F. should pay for the goods on delivery……………. rupees.

2. The plaintiff made the goods, and on the…… day of …… 19… , offered to deliver them to E.F., and has ever since been ready and willing so to do.

3. E.F. has not accepted the goods or paid for them.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 6 
Deficiency Upon a Re-sale [Goods Sold at Auction]

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19…., the plaintiff put up at auction sundry [goods], subject to the condition that all goods not paid for and removed by the purchaser within [ten days] after the sale should be re-sold by auction on his account, of which condition the defendant had notice.

2. The defendant purchased [one crate of crockery] at the auction at the price of…… rupees.

3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for [ten days] after.

4. The defendant did not take away the goods purchased by him, nor pay for them within [ten days] after the sale, nor afterwards.

5. On the …… day of …… 19… ., the plaintiff re-sold the [crate of crockery], on account of the defendant, by public auction, for…. rupees.

6. The expenses attendant upon such re-sale amounted to …… rupees.

7. The defendant has not paid the deficiency thus arising, amounting to …….. rupees.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 7 
Services at a Reasonable Rate

(Title)

A. B., the above-named plaintiff, states as follows:-

1. Between the …… day of…… 19… , and the …… day of 19… at …….plaintiff [executedsundry drawings, designs anddiagrams] for the defendant, at his request; but no express agreement was made as to the sum to be paid for such services.

2. The services were reasonably worth …… rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 8 
Services and Materials at a Reasonable Cost

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , at… ., the plaintiff built a house [known as No, … ., in… .], and furnished the materials therefor, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.

2. The work done and materials supplied were reasonably worth …… rupees.

3. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

No. 9 
Use and Occupation

(Title)

A.B., the above-named plaintiff, executor of the will of X. Y., deceased, states as follows:-

1. That the defendant occupied the [house No… .., street], by permission of the said X. Y., from the …… day of… 19 … , until the day of …… 19 … , and no agreement was made as to payment for the use of the said premises.

2. That the use of the said premises for the said period was reasonably worth… rupees.

3. The defendant has not paid the money. [As in paras 4 and 5 of Form No. 1.]

4. The plaintiff as executor of X. Y., claims (Relief claimed].

No. 10 
On an Award

(Title)

A. B., the above-named, plaintiff, states as follows:-

1. On the …… day of…… 19 … , the plaintiff and defendant, having a difference between them concerning [a demand of the plaintiff for the price often barrels of oil which the defendant refused to pay], agreed in writing to submit the difference to the arbitration of E.F. and G.H. and the original document is annexed hereto.

2. On the …… day of…… 19… , the arbitrators awarded that the defendant should [pay the plaintiff… rupees].

3. The defendant has not paid the money.

[As in paras. 4 and 5 of Form No. 1, and Relief claimed.}

No. 11 
On a Foreign Judgment

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , at… , in the State [or Kingdom] of the …… Court of that State [or Kingdom,] in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff …….. .rupees, with interest from the said date.

2. The defendant has not paid the money.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 12 
Against Surety for Payment of Rent

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , E.F. hired from the plaintiff for the term of……years, the [house No. …… , …… street], at the annual rent of…… rupees, payable [monthly].

2. The defendant agreed, in consideration of the letting of the premises to E. F. to guarantee the punctual payment of the rent.

3. The rent for the month of…… 19… , amounting to …… rupees, has not been paid.
[If, by the terms of the agreement, notice is required to be given to the surety, add:-]

4. On the …… day of…… 19… , the plaintiff gave notice to the defendant of the non-payment of the rent, and demanded payment thereof.

5. The defendant has not paid the same.
[As in paras 4 and 5 of Form No. 1, and relief claimed.]

No. 13 
Breach of Agreement to Purchase Land

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19. . . , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.

[Or, on the …… day of…… 19… , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant and that the defendant should purchase from the plaintiff forty bighas of land in the village of… .for… rupees.]

2. On the ………………. day of………. 19… , the plaintiff, being then the absolute owner of the property [land the same being free from all incumbrances, as was made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument] on the payment by the defendant of the sum agreed upon.

3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

HIGH COURT AMENDMENT

Calcutta and Gauhati.-In Appendix A, in Form No. 13, for the word “bighas”, substitute the word “acres”.

No. 14 
Not Delivering Goods Sold

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the… ..day of… 19… , and that the plaintiff should pay therefor …… rupees on delivery.

2. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.

3. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery. [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 15 
Wrongful Dismissal

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of …… 19… , the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant, or in the capacity of foreman, or as the case may be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services …… rupees [monthly].

2. On the …… day of…… 19.. .. , the plaintiff entered upon the service of the defendant and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.

3. On the …… day of…… 19… , the defendant wrongfully discharged the plaintiff,

and refused to permit him to serve as aforesaid, or to pay him for his services. [As in paras. 4 and 5 of Form No. 1, and Relief claimed.]

No. 16 
Breach of Contract to Serve

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of …… 19… , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [annual] salary of… rupees, and that the defendant should serve the plaintiff as [an artist] for the term of [one year].

2. The plaintiff has always been ready and willing to perform his part of the agreement and on the day of…… 19… , offered so to do.

3. The defendant (entered upon) the service of the plaintiff on the above-mentioned day, but afterwards, on the… .day of… 19… , he refused to serve the plaintiff as aforesaid. [As in paras 4 and 5 of Form No. I, and Relief claimed.].

No. 17 
Against a Builder for Defective Workmanship

(Title)

A. B., the above-named plaintiff, states as follows:-

1.On the …… day of…… 19… , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed, [or State the tenor of the contract.]

2. The plaintiff duly performed all the conditions of the agreement on his part.]

3. The defendant [built the house referred to in the agreement in a bad and unworkmanlike manner], [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 18 
On a Bond for the Fidelity of a Clerk

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , the plaintiff took E.F. into his employment as a clerk.

2. In consideration thereof, on the …… day of…… 19. .. , the defendant agreed with the plaintiff that ifE.F., should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all monies, evidences of debt or other property received by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding ……….. rupees.

[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of…… rupees, subject to the condition that if E.F. should faithfully perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all monies, evidences of debt or other property which should be at any time held by him in trust for the plaintiff, the bond should be void.]

[Or, 2 In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]

3. Between the…… day of…… 19… , and the …… day of 19… , E.F. received money and other property, amounting to the value of…… rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.

[As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 19
By Tenant against Landlord, with Special Damage

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , the defendant, by a registered instrument, let to the plaintiff [the house No. …… Street] for the term of …… years, contracting with the plaintiff that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.

2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.

3. On the …… day of …… 19… , during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withhold the pos- session thereof from him.

4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend …… rupees in moving, and lost the custom of G.H. and I.J. by such removal].

[As in paras 4 and 5 of Form No. I, and Relief claimed.]

No. 20 
On an Agreement of Indemnity

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , the plaintiff and defendant, being partners in trade under the style of A.B, and CD., dissolved the partnership, and mutually agreed that the defendant should take and keep all the

partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.

2. The plaintiff duly performed all the conditions of the agreement on his part.

3. On the …… day of…… 19… , [a judgment was recovered against the plaintiff and defendant by E. F., in the High Court of Judicature at …… , upon a debt due from the firm to E.F. and on the day of 19… ,] the plaintiff paid…… rupees [in satisfaction of the same].

4. The defendant has not paid the same to the plaintiff. [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 21 
Procuring Property by Fraud

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day…… 19… , the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth ………. rupees over all his liabilities].

2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of ………. rupees.

3. The said representations were false [or state the particular falsehoods] and were then known by the defendant to be so.

4. The defendant has not paid for the goods. [Or, if the goods were not delivered. ] The plaintiff, in preparing and shipping the goods and procuring their restoration, expended….. rupees. [As in paras 4 and 5 of Form No. 1, and Relief claimed.]

No. 22
Fraudulently Procuring Credit to be given to another Person

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the…… day of…… 19… , the defendant represented to the plaintiff that E.F. was solvent and in good credit, and worth …… rupees over all his liabilities [or that E.F. then held a responsible situation and was in good circumstances, and might safely be trusted with goods on credit].

2. The plaintiff was thereby induced to sell to E.F. (rice) of the value of …… rupees [on months credit].

3. The said representations were false and were then known by the defen